I.R. Coelho (Dead) By LRs. vs State of Tamil Nadu

I. Introduction

This judgment deals with the validity of the insertion of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act) and the West Bengal Land Holding Revenue Act, 1979 into the Ninth Schedule of the Constitution of India. The matter has been referred to a larger Bench for consideration, along with the judgments in Waman Rao and Bhim Singh Ji cases. [Paragraph 1]

II. Background

Gudalur Janmam Estates Act

The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, insofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by the Supreme Court in Balmadies v. State of Tamil Nadu [1973] 1 SCR 258 because it was not found to be a measure of agrarian reform protected by Article 31A of the Constitution. [Paragraph 1]

West Bengal Land Holding Revenue Act

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. The special leave petition filed by the State of West Bengal against this judgment was dismissed. [Paragraph 1]

Insertion into the Ninth Schedule

By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act, in its entirety, was inserted into the Ninth Schedule. By the Constitution (Sixty-sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted into the Ninth Schedule. [Paragraph 1]

III. Contentions

The insertion of these Acts into the Ninth Schedule is being challenged on two grounds:

1. Judicial review is a basic feature of the Constitution, and to insert an Act or part of an Act that has been struck down as unconstitutional in the exercise of judicial review is to destroy or damage the basic structure of the Constitution. [Paragraph 1]

2. To insert into the Ninth Schedule after April 24, 1973, an Act or part of an Act that has been struck down as violative of the fundamental rights conferred by Part III of the Constitution is to destroy or damage its basic structure. [Paragraph 1]

IV. Relevant Provisions

Article 31B of the Constitution provides that none of the Acts and Regulations specified in the Ninth Schedule shall be deemed void or inconsistent with the fundamental rights conferred by Part III of the Constitution, notwithstanding any judgment, decree, or order of any court to the contrary. [Paragraph 5]

V. Waman Rao Judgment

The judgment in Waman Rao & Ors. Etc. Etc. v. Union of India and Ors. [1981] 2 SCR 1 dealt with Article 31B. It referred to the judgment in Kesavananda Bharti [1973] Suppl. SCR 1, which held that Parliament has no power to amend the Constitution to damage or destroy its basic or essential features or basic structure. [Paragraph 7]

The order in Waman Rao held that:

• All amendments to the Constitution made before April 24, 1973, by which the Ninth Schedule was amended, were valid and constitutional. [Paragraph 7]

• Amendments made on or after April 24, 1973, by which the Ninth Schedule was amended, were open to challenge on the ground that they damage the basic and essential features of the Constitution or its basic structure. [Paragraph 7]

• If an Act or Regulation included in the Ninth Schedule by an amendment made after April 24, 1973, is saved by Article 31A or Article 31C (as it stood prior to the 42nd Amendment), the challenge to the validity of the relevant Constitutional Amendment on the ground that it damages or destroys a basic or essential feature of the Constitution or its basic structure as reflected in Articles 14, 19, or 31 will become otiose. [Paragraph 7]

Chandrachud, C.J., in Waman Rao, stated that laws and regulations included in the Ninth Schedule prior to April 24, 1973, would not be open to challenge on the ground of inconsistency with Part III of the Constitution. However, Acts and Regulations included on or after April 24, 1973, would not receive the protection of Article 31B, as there was no justification for making additions to the Ninth Schedule with a view to conferring blanket protection on the laws included therein. The constitutional amendments making additions to the Ninth Schedule on or after April 24, 1973, would be valid only if they did not damage or destroy the basic structure of the Constitution. [Paragraph 7]challenge on the ground of inconsistency with Part III of the Constitution. However, Acts and Regulations included on or after April 24, 1973, would not receive the protection of Article 31B, as there was no justification for making additions to the Ninth Schedule with a view to conferring blanket protection on the laws included therein. The constitutional amendments making additions to the Ninth Schedule on or after April 24, 1973, would be valid only if they did not damage or destroy the basic structure of the Constitution. [Paragraph 7]

Bhagwati, J., in his judgment common to Waman Rao and Minerva Mills Ltd. & Ors. v. Union of India & Ors. [1981] 1 SCR 206, stated that all constitutional amendments made after the Kesavananda Bharti case would have to be tested by reference to the basic structure doctrine. In every case where a constitutional amendment includes a statute or statutes in the Ninth Schedule, its constitutional validity would have to be considered concerning the basic structure doctrine, and such an amendment would be liable to be declared invalid to the extent it damages or destroys the basic structure of the Constitution by according protection against violation of any particular fundamental right. [Paragraph 7]

VI. Bhim Singh Ji Judgment

The Constitution Bench that decided Waman Rao also decided the case of Maharao Sahib Sri Bhim Singh Ji Etc. Etc. v. Union of India & Ors. Etc. Etc. [1985] Suppl. 1 SCR 862, which dealt with the Urban Land (Ceiling and Regulation) Act, 1976, inserted into the Ninth Schedule by the Constitution (Fortieth Amendment) Act. [Paragraph 8]

Tulzapurkar, J., held the entire Act to be unconstitutional, while the other four learned Judges agreed that a part of Section 27(1) of the Act was unconstitutional. Section 27(1) imposed restrictions on the transfer of urban or urbanizable land with a building or a portion of such building for a period of ten years, except with the previous permission of the competent authority. [Paragraph 8]

Tulzapurkar, J., and A.P. Sen, J., struck down Section 27(1), in part, for violation of the fundamental rights conferred by Articles 14 and 19(1)(f), respectively. However, Krishna Iyer, J., stated that a mere violation of Article 14 is not a betrayal of the basic feature, but a shocking, unconscionable, or unscrupulous travesty of the quintessence of equal justice that shakes the democratic foundation and must suffer the death penalty. [Paragraph 8]

VII. Referral to a Larger Bench

The Court deems it fit to refer these writ petitions and appeals for decision to a larger Bench, preferably of nine learned Judges, to consider the following:

1. Reconcile the apparent inconsistencies in the Waman Rao judgment and make it clear whether an Act or Regulation, or a part thereof, found by the Supreme Court to be violative of one or more fundamental rights conferred by Articles 14, 19, and 31, can be included in the Ninth Schedule. [Paragraph 9]

2. Determine whether it is only a constitutional amendment amending the Ninth Schedule that damages or destroys the basic structure of the Constitution that can be struck down. [Paragraph 9]

3. Consider the decision in the Bhim Singh Ji case for the purposes mentioned above. [Paragraph 10]

The papers and proceedings shall be placed before the Hon'ble the Chief Justice of India for appropriate orders. [Paragraph 11]