IR Coelho v. State of Tamil Nadu is one of the landmark decisions of Hon’ble Supreme Court on 9th Schedule and Basic Structure doctrine. It is passed by 9-judge bench of Supreme Court. The court examines the applicability of basic structure doctrine on 9th schedule and examine in detail the two important questions:

1. Whether it is permissible for the parliament under Article 31B to immunize legislations from Fundamental Rights by inserting them in 9th Schedule?;
2. And, if so, what is its effects on power of Judicial Review of the court?

I. Introduction/Background of IR Coelho

For Agrarian Society and abolishing Zamindari System Article 31-B was inserted in the constitution through 1st Amendment. 31B states that:

“31B. Validation of certain Acts and Regulations: Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.”

This immunity provided by Article 31-B provides excessive power to the legislative body regardless of the presence of the basic structure doctrine. It becomes insignificant. Therefore, the Judiciary in the case of Minerva Mills and Waman Rao stated clearly that after 24th April 1973, there is no absolute immunity to the laws that are placed in the 9th Schedule. There is only fictional immunity as the law must conform to the basic structure of the constitution. The challenge on same question of law is placed in case of IR Coelho v. State of Tamil Nadu before a 9-judge bench of hon’ble Supreme Court.

II. Court revisited the Journey of Basic Structure Doctrine in IR Coelho

The court in IR Coelho v. State of Tamil Nadu visited the journey of Basic Structure, covering all the landmark cases on amendment power and implied limitations provided by the constitution.

1. Sankari Prasad

Starting from Sri Sankari Prasad v. UOI where Constitutional validity of 1st Amendment was challenged. The court held that Article 13(2) does not affect amendments to the constitution made under Article 368 because such amendments are made in exercise of constituent powers.

2. Sajjan Singh

Secondly, In Sajjan Singh v. State of Rajasthan, the constitutional validity of Acts added to 9th schedule by 17th amendment Act, 1964 was challenged, the court noted that Article 31-A and Article 31-B were added to the constitution realizing that state legislative measures adopted by certain states for giving effects to the policy of agrarian society.

The court in this case applied doctrine of pith and substance to state that the parliament is seeking to amend Fundamental right solely with the object of removing any obstacle in fulfillment of socio-economic reforms. Therefore, they found that there is no direct effect on Article 226.

Majority of judges concurred with opinion of C.J. Gajendragadkar. However, J. Hidayattulah and J. R. Mudholkar expressed concern on future amendment related to fundamental rights and basic structure of the constitution. In words of J. Mudholkar:

“It is also a matter for consideration whether making a change in basic feature of constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the constitution; and if the latter, would it be within purview of Article 368?”

J. Mudholkar

3. I.C. Golak Nath

Thirdly, In I.C. Golak Nath & Ors v. State of Punjab, 11 judges’ bench with 6:5 majority overruled the decision in Shankari Prasad and Sajjan Singh. The court held that constitutional amendment comes with the meaning of law in Article 13 of constitution. Therefore, any amendment violating fundamental rights would be void.

Soon after this case, 24th, 25th, 26th and 29th amendment was passed. By 24th amendment the parliament want to nullify the effect of Golak Nath case as it inserted clause (4) in Article 13 which states that “Nothing in this article shall apply to any amendment of this constitution made under Article 368.”

Article 368 was also amended, in clause (1) of article 368 “In exercise of its constituent powers” was added. Further, Article 31 was amended via the 25th amendment dealing with compensation for acquiring or acquisition of properties for public purposes so that only the amount fixed by law needs to be given, and this amount could not be challenged in court on the ground that it would not be adequate or in cash.

In addition, Article 31C was inserted, which provides for the saving of laws giving effect to certain directive principles. Further, privy purses and recognition granted to the rulers of Indian states were ceased via the 26th amendment, which omitted Article 291 and Article 362.

4. Keshavananda Bharti

Moreover, the 29th amendment inserted two Kerala Amendment Acts in the 9th schedule. That became the ground of challenge in Keshavananda Bharti v. State of Kerala.

The largest constitutional bench was setup in this case where the court overruled Golak Nath by 7:6 majority. The majority held that Article 368 did not enable the parliament to alter the basic structure or framework of the constitution. The 24th and 29th amendment was held valid.

III. Various case laws during emergency was cited in IR Coelho

The Hon’ble Supreme Court have looked into various legal development during emergency in IR Coelho case to understand the importance of judicial review and fundamental rights.

1. Indira Nehru Gandhi Case and Pre-Emergency situation

The court observed in IR Coelho that the decision of Allahabad High Court to set-aside the election of the then PM Mrs. Indira Gandhi to the 5th Lok Sabha on ground of corrupt practices was important development. As during the pendency of 39th appeal before Supreme Court, the constitution 39th amendment Act was passed which inserted Article 329A that was repealed via 44th amendment.

In Indira Nehru Gandhi v. Raj Narain, the aforesaid clause were struck down by holding them to be violative of the basic structure of the constitution.

About two weeks before the decision in Indira Gandhi case, Internal emergency was proclaimed in the country. During emergency from 26th June 1975 to March 1977, Article 19 of Constitution stood suspended by virtue of Article 358 and Article 14 and 21 by virtue of Article 359.

2. ADM Jabalpur case and Emergency situation

During an internal emergency, the 40th amendment was passed, which inserted Entry 124 to 188. Many of the entries were unrelated to land reform, which went against the ultimate aim of placing laws in the 9th schedule.

The most controversial amendment, popularly known as the mini-constitution, was passed, i.e., the 42nd amendment, which inserted Article 368 (4) and (5).

In ADM Jabalpur v. Shivkant Shukla, the court did a restrictive reading of the right to life and liberty, which was implicitly overruled by various subsequent decisions.

3. Post Emergency and Landmark Cases

After end of internal emergency, 44th constitutional amendment Act, 1978 was passed. By virtue of the said amendment, Article 19(f) right to property ceased to be fundamental right and it became only legal right by insertion of Article 300A in the Constitution.

Judgment giving strength to Judicial review

In Maneka Gandhi v. UOI, Article 21 was given more wider interpretation. In Minerva Mills case court struck down clause (4) and (5) of Article 368 finding that they violated the basic structure of the constitution. Further, in Waman Rao case, court noticed the developments that had taken place post Keshavananda Bharti.

In Bhim Singhji, the Urban Land (Ceiling and Regulation) Act, 1976 was inserted in 9th schedule. The validity of this law was challenged under Article 14 and 19(f) of part III of the Constitution. The Supreme Court find it violative of these two articles under part III.

In L. Chandra Kumar v. UOI, power of Judicial review was held as integral and essential feature of the constituion constituting the basic part, the jurisdiction so conferred on HC and the SC is a part of inviolable basic structure of constitution of India.

IV. Reference to Federalist paper in IR Coelho

In IR Coelho, the court referred to Federalist papers which played a major role in USA in establishing federal system. The court stated that, for preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in three different organs. In Federalist 47, 48, and 51 James Madison details how a separation of powers preserves liberty and prevents tyranny.

In Federalist 47, Madison discusses Montesquieu’s treatment of the separation of powers in the Spirit of Laws (Boox XI, Ch. 6). There Montesquieu writes,

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…. Again, there is no liberty, if the judicial power be not separated from the legislative and executive.”

Montesquieu

Alexander Hamilton in Federalist 78 remarks on the importance of the independence of the judiciary to preserve the separation of powers and the rights of the people stated that:

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

A. Hamilton

V. Contention of Parties in IR Coelho

In IR Coelho, both petitioners and respondents have impeccable arguments regarding judicial review and basic structure doctrine.

1. Petitioners Arguments

The petitioners in IR Coelho argued that post 1973, it is impermissible to immunize 9th Schedule laws from judicial review by making part III inapplicable to such laws. The key question is whether basic structure would include judicial review of the 9th schedule laws on touchstone of fundamental rights?

There is possibility of misuse of Article 31B as 9th Schedule only commenced with 13 enactments has now a list of 284 enactments.

2. Respondents Arguments

The respondents in IR Coelho argued that since there is no complete exclusion of judicial review only Fundamental rights are excluded as a result of protective umbrella of Article 31B. Therefore, challenge can only be based on (i) lack of legislative competence, (ii) violation of constitutional provision. Consequently, there is no violation of basic structure doctrine.

Further, Majority in Keshavananda Bharti stated Article 31B or 9th Schedule is a permissible constitutional device to provide a protective umbrella to 9th schedule laws.

VI. Point in Issue in IR Coelho

The major issue raised in IR Coelho is that there is no mention of the test that is to be applied to the legislations inserted in 9th schedule. The Respondents seek to draw from above test that this amount to an unconditional upholding of the legislations in 9th schedule.

The other issue arose in this case is due to confusion of J. Khanna stand on Fundamental rights in Keshavananda Bharti case. The respondents interpreted that no fundamental rights fall within the ambit of basic structure doctrine. However, J. Khanna clarified his stands on 29th amendment as he held that some of the fundamental rights were part of the basic structure.

In light of above clarification, full judicial review is an integral part of constitutional scheme. J. Khanna was considering right to property, and it is in that context it was said that no article of the constitution is immune from amendatory process.

VII. Judgment and Analysis of IR Coelho

The court held that since 9th schedule do not become part of the constitution, they derive their validity on account of exercise undertaken by Parliament to include them in 9th schedule by virtue of Article 368. Therefore, In Waman Rao, it was rightly held that the Acts placed in 9th schedule after 24th April 1973 would not receive full protection. There is only fictional immunity as the law must conform to the basic structure of the Constitution.

Further, there was great emphasis given by the court in IR Coelho on Direct impact and effect test i.e., right test. The court stated that essence of right test is not relevant in this case. The concept of essence of rights is based on the belief that certain rights are so deeply ingrained in human nature that they cannot be taken away or compromised in any way. As right test laid down the direct impact of law on fundamental right and it offers certain restriction that can be imposed on those rights which is more crucial in determining validity of 9th schedule laws.

The court laid that exclusion of judicial review must be compatible with doctrine of basic structure. As a modern democracy is based on twin principle of:

1. Majority rule
2. Need to protect fundamental rights

Fundamental rights cannot be abridged without any reasonable restrictions. As it has already been stated in Keshavananda Bharti judgment that parliament can amend even fundamental rights, but it cannot amend the basic structure. Therefore, A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.

The majority judgment in Kesavananda Bharati’s case read with Indira Gandhi’s case, requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.

The court further stated that validity of any law inserted in 9th schedule have to be tested on principle of Article 21 read with Article 14 and 19, and the principles underlying them.

Therefore, this is the whole case analysis of landmark judgment of IR Coelho. It remains one of the most significant cases on judicial review, basic structure doctrine, 9th schedule.

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