I.R. Coelho v State of Tamil Nadu
Decided on 11th January, 2007.
In the Supreme Court of India.
Petitioner: I.R. Coelho (Dead) By LRs
Respondent: State of Tamil Nadu and others
Civil appeal no: 1344-45 of 1976
Citation: (2007) 2 SCC 1: AIR 2007 SC 861
Bench: 1. Hon’ble Justice Y.K Sabharwal Singh.
2. Hon’ble Justice S.H Kapadia.
3. Hon’ble Justice C.H Thakker.
4. Hon’ble Justice D.K Jain.
5. Hon’ble Justice P.K Balasubramanyan.
6. Hon’ble Justice Altamas Kabir.
7. Hon’ble Justice Ashok Bhan.
8. Hon’ble Justice B.P Singh.
9. Hon’ble Justice Arijit Pasayat.
The I.R Coelho case played a vital role in determining the power of judiciary when it comes to judicial review. This case drew a distinction and limited the arbitrary actions of the legislature under the guise of Article 368. This case is also referred to as the 9th schedule case. The court in this case laid down that any law or acts infringing upon fundamental rights or violating the basic structure of our constitution would not be exempted from judicial review. This judgement was given holding the basic structure doctrine propounded in Kesavananda Bharti case as precedent.
9th schedule and Article 31-B: The 9th schedule was added in the constitution by the 1st amendment of 1951. It was created by Article 31-B which along Article 31-A aimed at protecting laws related to agrarian reform and to abolish the zamindari system. The parliament by provision of Article 368 enacted various laws and acts which were arbitrary and violative of fundamental rights. These laws were placed under the umbrella of 9th schedule which backed by Article 31-B allowed them to escape the judicial purview. Initially, the purpose behind Art.31-B was to remove the difficulties in the constitution. But this power was misused to enact laws under 9th Schedule which could not be challenged in courts. For instance, the Tamil Nadu government by way of [76th amendment] Act,45 of 1994 amended 9th schedule and inserted 257-A. It calls for 69% reservation in government services. This amendment breaches the 50% reservation limit decided in the Indira Sawhney case. But protected by the 9th schedule no judicial action could be taken.
Judicial background: The court in their judgements have taken different stances in upholding the validity of the amending power of the Parliament. Some of the important cases are:
In Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, the court held that Article 13 (1) does not affect the amendments made under Article 368 of the Constitution as they are made in exercise of constituent power and upheld the validity of first amendment.
However, the judgement of Sankari Prasad (supra) was overruled by I.C. Golak Nath & Ors. v. State of Punjab & Anr., where the court stated that 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 would be void.
Thereafter, the Constitution (29th Amendment) Act, 1972 amending the Ninth Schedule to insert two Kerala amendment acts in furtherance of land reform was challenged in Kesavananda Bharti Sripadagalvaru v. State of Kerala and Anr. The judgement was given on 24th April 1973 and overruled the Golak Nath case (supra). It was held that Article 368 did not enable the Parliament to alter the basic structure or framework of the Constitution.
The court in Waman Rao & Ors. v. Union of India & Ors held that amendments made to the constitution on or before 24th April 1973 by which 9th Schedule is amended can be challenged if it violates basic structure of Constitution. This judgement was reconsidered by a higher bench of 9 judges to remove apparent inconsistencies and whether any law infringing on Fundamental rights could be added to 9th schedule.
Constitutional Provisions discussed: Article 31-B, Article 31-A, 9th Schedule, Article 368, Article 14, 19, 21 and 32.
Facts of the case:
The case arose because of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act). This act which vested forest lands in the Jamnam estates in Tamil Nadu was struck down by Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu . It was struck down by the court because it did not account for agrarian reform which could be protected by article 31-A of the Constitution. However, the Jamnam Act in its entirety was added in the 9th Schedule by way of the Constitution (Thirty-fourth Amendment) Act. The contention urged before the Constitution Bench was that the statutes, which had been previously struck down, could not be a part of the Ninth Schedule.
- Can the 9th Schedule be exempted from judicial scrutiny?
- Can the fundamental rights if found violative, in the 9th schedule also be challenged before the courts?
- Whether the basic structure test would include judicial review of Ninth Schedule laws on the touchstone of fundamental rights?
- To what extent and nature of immunity can Article 31-B validly provide?
Contentions put forth by petitioners:
- The petitioners contended that the Ninth Schedule laws cannot be conferred with constitutional immunity of the kind provided by Article 31-B and if such immunity is given it should be adjudged by the direct impact and effect test. It means that the form of amendment would not be relevant, but the consequence would play a determinative factor.
- It was submitted that the power to make any law at its will transgresses Part III and is not in alignment with the basic structure of the Constitution. The consequence of such arbitrary will if allowed would abrogate Article 32 and be violative of the basic structure of the Constitution.
- It was further submitted that the Constituent power under Article 368 is not inclusive of judicial power. The power to establish judicial remedies is qualitatively different from the power to exercise judicial power.
Contentions put forth by respondents:
- The respondents contended that the Validity of Ninth Schedule legislations can only be tested on the touchstone of basic structure doctrine as decided by majority in Kesavananda Bharati’s case. As the case had upheld the 29th Amendment it was submitted that there could not be any question of judicial review on the ground of violation of fundamental rights.
- It was submitted that Fundamental Rights are excluded by the protection provided by Article 31-B. Thus, the challenge can be based only on the basic structure doctrine.
- Further, it was submitted that though the existence of judiciary is a basic structure of constitution and cannot be abrogated but this power could be curtailed in certain matters.
- It was submitted that Article 31B and the amendments made by such laws added to the Ninth Schedule form such a device, which would ‘cure the defect’ of legislation.
Observation of the court:
The Court in this matter observed that it was the role of the Judiciary to protect fundamental rights of the citizens. The addition of the term ‘constituent power’ in Article 368 does not enable the Parliament to become the original Constituent assembly. Even after the inclusion of the term ‘constituent power’ in Article 368, the limitations of basic structure of doctrine would still apply to the Parliament. Any amendment incompatible with the basic structure doctrine which alters the identity of the Constitution or tampers with the vital elements which forms the core of the Constitution would be discarded.
The court in its ‘ratio decidendi’ held that the use of Article 31-B to immunize 9th Schedule from judicial review by making Part III inapplicable to such laws would render the basic structure doctrine redundant. It would result in altering the identity of the Constitution whilst also changing the limited amending power of the Parliament. The court stated that ‘The object behind Article 31-B is to remove difficulties and not to obliterate Part III in its entirety or judicial review’.
Further, the court observed that the validity to the limitation on the rights in Part III can only be examined by the judiciary. The court stated that in such matters the ‘impact and effect’ test has to be applied. ‘Firstly, the violation of rights of Part III is required to be determined, then its impact is to be examined and if it shows that in effect and substance, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow’. It means that any 9th Schedule law if found violative of Part III must be further examined if it destroys the basic structure doctrine. If the answer is found to be in the affirmative such law in the 9th Schedule would be invalid.
Judgement of the court:
- The court in its judgement by a unanimous decisionheld that any law included in the 9th Schedule which abridges the rights conferred in Part III of the Constitution would be invalidated by the exercise of judicial review.
- The ‘effect and impact’ test must be considered while determining whether such law destroy the Basic structure Doctrine.
- All amendments to the Constitution made on or after 24th April 1973 by which the Ninth Schedule is amended must be tested on the touchstone of the basic features of the Constitution as reflected in Article 21, Article 14, Article 19 and the principles underlying them.
- Any law held to be violative of any rights in Part III which is added in the Ninth Schedule after 24th April 1973, can be challenged on the ground that it destroys the basic structure as indicated in Article 21, Article14 and Article 19 and the principles laid within
- Judicial review is a basic structure of the Constitution, and no law can be immunized from judicial scrutiny by way of addition in the 9th Schedule.
The judgement propounded by the court upholds the basic structure doctrine. It acts as a check on the amending power of the Parliament if found infringing on the fundamental rights of the citizens. The court in its judgement drew a clear distinction and held that laws in the 9th Schedule would be within judicial review not only when it poses a threat to the basic structure of the Constitution but also if it is found to be violative of the Fundamental Rights. Thus, it demarcated a clear boundary between the extent of amending powers of the parliament and the power of judicial review of the courts.