Case Comment: I R Coelho v. State of Tamil Nadu (AIR 2007 SC 861)

Introduction

I R Coelho v. State of Tamil Nadu case is one of the landmark judgement for the interpretation of the doctrine of basic structure decided by a nine-judge bench, with regard to conflict of power between the Parliament and Supreme Court. The politico-legal controversy continuing from decades has been brought to an end by this judgement, holding Parliaments amending power subject to Judicial Review. This judgement is based on the Doctrine of Basic Structure as propounded in Kesavananda Bharti Case.[1]

Justice Mathew, in Indira Gandhi v. Raj Narain,[2] piercingly stated that “The concept of basic structure as a brooding omnipresence in the sky apart from specific provisions of the constitution is too vague and indefinite to provide a yardstick for the validity an ordinary law”.

Facts of I R Coelho v. State of Tamil Nadu

I R Coelho v. State of Tamil Nadu arose when The Gudalur Janmann Estates (Abolition and Conversion into Ryotwari), Act, 1969 (the Janman Act), that endowed forest lands in the Janman estates in the State of Tamil Nadu, which was struck down by the Supreme Court in Balmadies Plantations Ltd and Anr. v. State of Tamil Nadu[3] “as the same was not found to be a measure of agrarian reform protected under Article 31-A of the Constitution.” The Janman Act was inserted in the Ninth Schedule through Thirty-Fourth Amendment of the Constitution.

Issue

Whether after 24.04.1973 during which the Basic Structure Doctrine was propounded in the landmark judgment of Keshavananda Bharti v. State of Kerala[4], can the Parliament make legislations immune by inserting them in the Ninth Schedule and thereby restraining it from the purview of judicial review under Article 31-B and, provided that, what would be its impact on court’s power for judicial review.

Explanation

Ninth Schedule:

With the enactment of the Indian Constitution, a number of land reforms legislation were passed. Which were challenged at various courts throughout India as being violative of Fundamental Rights? In the landmark judgement of Kameshwar Singh v. State of Bihar[5], Patna High Court abrogated a number of land reforms legislation as they were violating the Fundamental Rights. Whilst other Courts like the Nagpur and Allahabad High Court upheld the validity of such land reforms legislatures.

The First Amendment of the Indian Constitution in 1951 inserted the Ninth Schedule in the Indian Constitution by enacting Article 31-B. The effect of Ninth Schedule was such that it was outside the purview of the Court and couldn’t be challenged on the grounds of violation of Fundamental Rights.

A petition under Art. 32 was filed before the Supreme Court contending that the insertion of the Article 31-A and Article 31-B was done by the Parliament to aid the legislature in bringing about agrarian reforms and simultaneously providing them with immunity from being challenged on the ground that they are violative of fundamental rights.

Article 31-B which was not a part of the original Constitution was inserted by the First Amendment Act, 1951. The same amendment act also inserted 8^th Schedule and 9^th Schedule which contained thirteen items all of which pertained to land reforms law.

Relevant Case Laws

The Supreme Court in the matter of Sri Shankari Prasad Singh Deo v. Union of India[6] uphold the constitutional validity of the First Amendment of the Constitution of India. The amendment was enacted with the objective of securing constitutional validity of the Zamindari Abolition Laws in general and certain specific acts and save those laws from dilatory litigation which would have only delayed in implementing the social reforms affecting a large number of people.

The Supreme Court while upholding the Constitutional Validity of the Amendment observed that Article 13(2) didn’t alter the amendments made to the Constitution under Article 368 as such amendments were made in exercise of constituent power.

• In Sajjan Singh v. State of Rajasthan[7], the Supreme Court again upheld the Constitutionality of the acts that were added under the Ninth Schedule Constitution (Seventeenth Amendment) Act, 1964 was challenged. The law as laid down in Shankari Prasad was reiterated by the Supreme Court, upholding the Constitutionality of the Act. The Court also observed that Article 31-A and Article 31-B have been inserted for realising the State Legislative measures adopted by the various State Legislature with regards to the agrarian reforms as challenging them on the grounds of being in contravention to the Fundamental Rights would only delay their implementation. Further, on the application of the Doctrine of Pith and Substance, it would become clear that the was seeking to amend the Fundamental Rights so as to remove any obstacle that may come in way of the implementation of the socio-economic policies.
• In I C Golak Nath v. State of Punjab[8], the Eleven Judge Bench of the Supreme Court took into consideration the correctness of the view laid down in the Shankari Prasad and Sajjan Singh Case. With a majority of six to five, the decision in the above cases were overruled and it was further held that Constitutional Amendment was law within the meaning of Article 13 of the Constitution and in case it took away or abridged any rights as conferred by Part III of the Constitution, then such amendment would be void. It was further held that after 27/02/1967 the Parliament could not amend any provision of Part III so as to abridge the Fundamental Rights as enshrined by them.

The amendments made after the I C Golaknath case was further challenged in the Case of Keshavananda Bharti v. State of Kerala[9]. The Thirteen Judge bench with a majority of seven to six overruled the decision as held in I C Golaknath and held that the amendment under Article 368 could be done to alter the basic structure or framework of the Constitution. The Constitution (24th Amendment) Act, 1971 was held to be valid. Further, the first part of Article 31C was also held to be valid. However, the second part of Art. 31C was declared unconstitutional as is said that no law giving declaration that it was for the implementation of such policy could be questioned before any court.

The 29^th Amendment of the Constitution was also declared valid. However, the validity of the 26^th Amendment Act was left for being decided by a Constitutional Bench of five judges and were of the opinion that the Parliament didn’t have unlimited powers of amendment and that Article 368 came with implied restrictions.

“In 1975 when the Allahabad High Court set aside the election of the then Prime Minster Mrs. Indira Gandhi to the first Lok Sabha on the ground of alleged corrupt practices. While an appeal was pending against the High Court judgement before the Supreme Court, the Parliament passed the Constitution (39th Amendment) Act, 1975. Clause (4) of the said amendment had the effect of inserting Article 329A. In Smt. Indira Nehru Gandhi v. Raj Narain[10] the aforesaid clauses was struck down as it was violative of the basic structure of the Constitution.”

• Further in the case of L. Chandra Kumar v. Union of India & Ors[11] “ it was held that power of judicial review by the courts is an integral and essential feature of the constitution and was also one of doctrines of Basic Structure of Constitution and hence the jurisdiction conferred on the High Courts and the Supreme Court is a part of inviolable basic structure of Constitution of India.”

Court’s Observation in I R Coelho v. State of Tamil Nadu

Firstly, it was to be kept in mind that each amendment which inserted “laws into Ninth Schedule entailed a complete removal of the fundamental rights chapter visà- vis the laws that are added in the Ninth Schedule. Secondly, the insertion of laws in the Ninth Schedule was not controlled by any well-defined criteria by which the exercise of power could be evaluated. Thus the consequence of insertion” was that it nullified the whole of Part III of the Constitution.

Further, there is no Constitutional Control on such nullification it meant giving an unlimited power to totally nullify Part III under the garb of Ninth Schedule. “The supremacy of the Constitution mandates that all constitutional bodies are to function in compliance with the provisions of the Constitution. It further mandates the testing of the validity of legislative acts through an independent organ, viz. the judiciary. The responsibility to judge the constitutionality of all laws is that of the judiciary.”

While Article 31B merely provided restricted immunity it appeared that the primary objective behind the Article was to protect a limited number of laws and it would have acted only as an exception to Part III and this reason was the basis for upholding of the provision initially. However, with the rampant exercise of this power, the total number of laws brought under Ninth Schedule had gone from 13 to 284 which only demonstrated that the Article was not being used as an exception as per the original intent behind its enactment.

Further, the absence of guidelines for the exercise of power guaranteed under the Article meant the absence of any constitutional control which would ultimately result in the destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise.

The basic structure of the Constitution includes some of the fundamental rights and judicial review, any law granted Ninth Schedule protection would still have to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of the basic structure, they would be liable to be struck down. The extent of abrogation and the limit of abridgements would be factual and had to be examined in each case.”

Decision in I R Coelho v. State of Tamil Nadu

Taking the reference of the abovementioned cases and in view of the judicial mandate laid down by doctrine of basic structure and the power of judicial review, it was concluded that after 24th April 1973 ( the date of the decision in Kesavananda Bharati), there would be no blanket immunity given to the laws which were placed in the Ninth Schedule.

And the Court would have the power to “examine the nature and extent of infraction of fundamental right by such statute, which is being sought to be constitutionally protected, and also 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. After application of the above-mentioned tests to the ninth schedule law if the infractions abridge the basic structure, then such law would not be given the protection of the ninth schedule.”

Further, a law which was judicially pronounced as violative of fundamental rights and which was subsequently inserted in the Ninth Schedule after the 24th April 1973, the Court held that such a violation could be challenged on the ground of firstly being in contravention to the basic structure doctrine as indicated in Article 21 read with Article 14, Article 19 and secondly the principles underlying thereunder.

It was held that the constitutional validity of the ninth schedule laws was to be judged by the direct impact and effect test, i.e., rights test, according to which it was not the form of the law rather the effect of such law which would act as the determinative factor and that It would be for the court to decide whether such interference was justified and whether it amounted to violation of basic structure doctrine.

The role of the court as to the “determination by the court whether the invasion was necessary and if so to what extent” shifts the determination of the need for the law from the Parliament to the courts for decision. This gives the courts the flexibility of applying both the tests and thereby helping in determining the validity of such cases. The determination whether the law is infringing the basic structure doctrine will be determined by the courts which would eventually serve as the sum and substance of the judgment.

Conclusion

This judgment reaffirms the basic structure doctrine and is a landmark in the sense it holds that any constitutional amendment which necessitates the violation of any fundamental rights and is so regarded by the Court as forming part of the basic structure of the Constitution then the same amendment can be declared invalid and can be struck down depending upon its impact and consequences.

Judicial review is one of the components of basic structure doctrine, the judiciary cannot be deprived of it nor can the rule of law be abrogated. “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.”

This decision can be said to be an alteration analysis of Golaknath’s judgement, as in Golak Nath abridgement of part III by any law would be declared invalid, but in this case, it was decided that the degree of breach was to be examined by the courts to determine the infringement of fundamental rights.

---

[1] Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461

[2] AIR 1975 SC 2299

[3] (1972) 2 SCC 133

[4] AIR 1973 SC 1461

[5] AIR 1951 Pat 246

[6] AIR 1952 SC 458

[7] AIR 1965 SC 845

[8] AIR 1967 SC 1643

[9] AIR 1973 SC 1461

[10] AIR 1975 SC 1590

[11] (1997) 3 SCC 261

---

1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Online Exam Preparation – The Prep Destination