Date of Decision- 11 January 2007
Y.K. Sabharwal Ashok Bhan Arijit Pasayat B.P. Singh, S.H. Kapadia C.K. Thakker & P.K. Balasubramanyan Altamas Kabir D.K. Jain.
Question of law involved
Nature and character of protection provided by Article 31B of the Constitution of India, 1950 to the laws added to the Ninth Schedule by amendments made after 24th April, 1973.
Contentions of the Parties
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 31B. Assuming that such immunity can be conferred, its constitutional 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 consequence would be a determinative factor. The power to make any law at will that transgresses Part III in its entirety would be incompatible with the basic structure of the Constitution. the abrogation of Article 32 would be per se violative of the basic structure.
- 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 chapter. The fundamental rights chapter stands excluded as a result of protective umbrella provided by Article 31B and, therefore, the challenge can only be based on the ground of basic structure doctrine and in addition, legislation can further be tested for (i) lack of legislative competence and (ii) violation of other constitutional provisions. There is no exclusion of judicial review and consequently, there is no violation of the basic structure doctrine.
- The constitutional device for retrospective validation of laws was well known and it is legally permissible to pass laws to remove the basis of the decisions of the Court and consequently, nullify the effect of the decision. It was submitted that Article 31B and the amendments by which legislations are added to the Ninth Schedule form such a device, which ‘cure the defect’ of legislation.
- There is no judicial review in absolute terms and Article 31B only restricts that judicial review power. 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.
- The test for judicially reviewing the Ninth Schedule laws cannot be on the basis of 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. Judicial review of Ninth Schedule laws is not completely barred. The only area where such laws get immunity is from the infraction of rights guaranteed under Part III of the Constitution.
Decision of the Court
- 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 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.
- 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. 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.
- 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.
- Since fundamental rights form a part of the basic structure and thus laws inserted into Ninth Schedule when tested on the ground of basic structure shall have to be examined on the fundamental rights test.
- The 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 they have entrusted the responsibility to adjudge, interpret and construe law and the Constitution including its limitation in the judiciary. We, therefore, cannot make any assumption about the alleged abuse of the power.
- The doctrine of basic structure was involved in Kesavananda Bharati’s case but its effect, impact, and working was examined in Indira Gandhi’s case, Waman Rao’s case and Minerva Mills case. All these judgments show that violation in the individual case has to be examined to find out whether the violation of equality amounts to destruction of the basic structure of the Constitution.
- The jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of the Constitution of India 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 are settled propositions of Indian jurisprudence.
- The principle of constitutionalism is now a legal principle which requires control over the exercise of the 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 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 wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.
- The fundamentalness of fundamental rights has thus to be examined having regard to the enlightened point of view as a result of the development of fundamental rights over the years…Over the years, the jurisprudence and development around fundamental rights have 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 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.
- There is also a difference between the ‘rights test’ and the ‘essence of right test’. Both form part of the application of the basic structure doctrine. When in a controlled Constitution conferring the 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 such a situation, to judge the validity of the law, it is ‘right test’ which is more appropriate.
- The object behind Article 31-B is to remove difficulties and not 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’ 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 RighThe 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.
The Hon’ble Apex Court determined whether on and after 24th April, 1973 when basic structures 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. The Court concluded that 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 pertains or pertain to the basic structure.
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