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SESSION : 2015-2020





ROLL NO. 1583075

This particular draft is for the Internal examination of
CONSTITUTION OF INDIA for semester-4 of KIIT School Of
Law, Bhubaneswar. The completion of this project could not have
been possible without the participation and assistance from lectures.

I sincerely thanks Ms Kyvalya Garikapati Maam for their

guidance and encouragements in carrying out this project work.


The case arose out of an order of reference made by a five judge constitution bench in
1999. The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969,
that vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck
down by the Supreme Court in Balmadies Plantations Ltd. & Anr. v. State of Tamil
Nadu, ,as it was found to be outside the scope of protection provided to agrarian reforms
under article 31-A of the Constitution. By the Constitution (Thirty-fourth Amendment)
Act, the Janmam Act was inserted in the ninth schedule, which was challenged. In its
referral order, the constitution bench noted that, according to Waman Rao & Ors.
v. Union of India & Ors , amendments to the Constitution made on or after 24.4.1973 (the
date of the Kesavananda Bharati judgment) inserting various laws in the ninth schedule
were open to challenge on the ground that such amendments are beyond the constituent
power of Parliament since they damage the basic structure of the Constitution. The
referral order further stated that the judgment in Waman Rao needs to be reconsidered by
a larger bench so that it is made clear whether an Act or regulation which, or a part of
which, is or has been found by the courts to be violative of one or more of the
fundamental rights conferred by articles 14, 19 or 31 can be included in the ninth
schedule or whether it is only a constitutional amendment amending the ninth schedule
which damages or destroys the basic structure of the Constitution that can be struck

The fundamental question decided in this case was, whether on and after 24.4.1923(Date
of the judgment in kesavananda Bharti V. State of Kerala when the basic structure
doctrine was propounded, is it permissible for the parliament under Article 31-B to
immunise legislations by inserting them into the ninth schedule and thus outside the
purview of the courts and, if so, what was its effect on the power of judicial review of the

Historical Background of the Ninth Schedule:

After the Constitution was enacted, several agrarian and land reforms legislations were
passed. These were challenged in State High Courts on the ground of violation of
fundamental rights. The Patna High Court struck down certain land reform legislation as
being violative of fundamental rights. Similar legislation was upheld by the Allahabad
and Nagpur High Courts and appeals from these judgments were pending in the Supreme
Court. The Union Government, with a view to put an end to all this litigation, passed in
Parliament the Constitution [First Amendment] Act, 1951. By this amendment Article 31-
B and Ninth Schedule were enacted in the Constitution. The intent and effect was that
any legislation placed in the Ninth Schedule could not be challenged on the ground that it
was violative of any fundamental right. It is interesting to note that only thirteen Acts, all
dealing with agrarian reforms, were initially placed in the Ninth Schedule. In course of
time that number swelled to 284. Many of the Acts, which had no relation with agrarian
or socio-economic reforms, were indiscriminately placed in the Ninth Schedule.

Development of law:

Pre Kesavananda Bharti case

The dispute arose right after the first amendment Act, inserting Article 31-B & ninth
schedule. Its constitutional validity was upheld in Sri Sankari Prasad Singh Deo vs.
Union of India and State of Bihar; it was held that Article 13(2) does not affect
amendments to the Constitution made under Article 368 because such amendments are
made in the exercise of constituent power. In a major breakthrough, in Golak Nath & ors.
Vs. State of Punjab & Anr , a bench of 11 judges considered the correctness of the view
that had been taken in Sankari Prasad and Sajjan Singh case. By majority of six to five,
these decisions were overruled. It was held that the 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 is void. It was declared that the
Parliament will have no power from the date of the decision (27th February, 1967) to
amend any of the provisions of Part III of the Constitution so as to take away or abridge
the fundamental rights enshrined therein.
Soon after Golak Nath Case, the Constitution (24th Amendment), Act 1971, the
Constitution (25th Amendment) Act, Act. 1971, the constitution (26th Amendment) Act,
1971 and the Constitution (29th Amendment) Act, 1972 were passed. These amendments
were challenged in Kesavananda Bharti case. In this case, the constitutionality of the
29th Amendment was challenged which amended the Ninth Schedule to the Constitution
inserting therein two Kerala Amendment Acts in furtherance of land reforms. By a
majority of seven to six, Golak Naths case was overruled. The majority opinion held that
though the amending power of the Parliament extends to all the Articles, Article 368 did
not enable the Parliament to alter the basic structure or framework of the Constitution.
There are implied or inherent limitations on the power of amendment under Article
368.Within these limits, every article can be amended.

Post Kesavananda Bharti Case

In the case of Indira Nehru Gandhi v. Raj Narain, Sub clause (4) and (5) of Article 329A,
that tried to keep the election matters outside the purview of the courts, were struck down
by the court as they were found to be violative of the basic structure of the constitution. It
was assumed that even after a statue is included in the 9th Schedule, its provision would
be open to challenge on the ground that they took away or abrogated all or any of the
fundamental rights and therefore damaged or destroyed a Basic Structure. The view that
the legislation included in the Schedule is subject to the test of basic structure, expressed
by Justice Mathew in Indira Gandhi case, found the support of a unanimous court
inWaman Rao v. Union of India. The court identified article 32 as part of the basic
structure. Then citing Minerva Mills case where the court by a majority of 4 to 1 struck
down clauses (4) and (5) of Article 368 which provided for exclusion of judicial review
and unlimited amendment power to the Parliament respectively. Judicial review held to
be a basic feature of the constitution. Similar views were reiterated in L. Chandra Kumar
V. Union of India & Ors . In S.R Bommai & Ors. V. Union of India & Ors, it was again
reiterated that the judicial review is a basic feature of the Constitution and that the power
of judicial review is a constituent power that cannot be abrogated by judicial process of
Citing all the aforementioned cases and recognizing the judicial mandate on doctrine of
basic structure and the power of judicial review, it concluded that after 24th April 1973
( the date of the decision in Kesavananda Bharati), laws placed in the Ninth Schedule
would not enjoy blanket immunity but the court will examine the nature and extent of
infraction of a fundamental right by a statute, sought to be constitutionally protected, and
on the touchstone of the basic structure doctrine as reflected in Article 21 read with
Article 14 and Article 19 by application of the rights test and the essence of the right
test. Applying the above mentioned tests to the ninth schedule laws, if the infraction
affects the basic structure, then such a law(s) will not get the protection of the ninth

With regard to a law judicially pronounced to be violative of fundamental rights and

which is subsequently inserted in the Ninth Schedule after the 24th April 1973, the Court
ruled that such a violation/infraction shall be open to challenge on the ground that it
destroys or damages the basic structure as indicated in Article 21 read with Article 14,
Article 19 and the principles underlying thereunder.

The court held that the constitutional validity of the ninth schedule laws could be
adjudged by applying the direct impact and effect test, i.e., rights test, which requires
that it is not the form of a law, but its effect, that would be the determinative factor. It is
the court that is to decide if this interference is justified and if does or does not amount to
violation of the basic structure. As stated, the role of the court is determination by
court whether invasion was necessary and if so to what extent. This position then
serves to shift the determination of the need for the law from the Parliament to the courts
for decision. It also allows the courts the flexibility of both the rights test and the essence
of rights test in dealing with the validity of such cases. The determination of the effect of
the infringement in either case would be for the courts to determine. This ultimately may
be the key point in the judgment .It could be said to be a modified version of Golaknath
judgement, because in Golak Nathany abridgement of part III would be invalid, but here
the degree of invasion would be examined by the courts in the light of tests subsequently
developed to test the infringement of fundamental rights
Criticism of the judgment:
Soli Sorabjee, the former Attorney General of India in a Lecture in the Oslo University in
October 2008, pointed out that The judgment clearly imposes further limitations on the
constituent power of Parliament with respect to the principles underlying certain
fundamental rights. With the utmost respect the judgment is not conducive to clarity. It
has introduced nebulous concepts like the essence of the rights test. Besides apart from
the express terms of Articles 21, 14 and 19, what are the principles underlying there
under? One does not have to be a prophet to visualize further litigation to explain the
Coelho judgment which is sure to add to the prevailing confusion. Thus, there is no
certainty or unanimity about what constitutes the essential or basic features of the

The judgment in I.R. Coelho vigorously reaffirms the doctrine of basic structure. Indeed
it has gone further and held that a constitutional amendment which entails violation of
any fundamental rights which the Court regards as forming part of the basic structure of
the Constitution then the same can be struck down depending upon its impact and

Thanks to the basic structure doctrine the judiciary cannot be deprived of the power of
judicial review nor can the rule of law be abrogated. Again thanks to this doctrine,
federalism cannot be obliterated and States made vassals of the Centre. The bad
experiences of the emergency period have further added the significance to the power of
the judicial review, which is the most powerful remedy against the state arbitrariness and
protection of fundamental rights. In the Indian context and experience substantial gains
resulting from the basic structure doctrine and a bulwark against further erosion of basic
fundamental rights.