Matrimonial and judicial cruelty

Soli J Sorabjee in The Indian Express

Cruelty is a ground for divorce under the Hindu Marriage Act. The problem is that this Act does not define cruelty. A bench of the Supreme Court comprising Justices Sathasivam and Ganguly in a recent illuminating judgment has dealt with this vexed problem. Justice Ganguly, speaking for the Court, rightly points out that cruelty in matrimonial cases can be of infinite variety. “It may be subtle or even brutal and may be by gestures and words. It may take the form of violence. At times, it may be just an attitude or an approach.” Again, the alleged cruelty “may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance”. In a realistic vein, the Bench approving the observations of Lord Reid in a House of Lords judgment ruled that in matrimonial cruelty cases there is no presumption that the parties are reasonable people “because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people”.

Thereafter follows a wholesome caveat: “We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.” One passage in this elegantly penned judgment—”silence in some situation may amount to cruelty”—is puzzling. When a spouse is ranting and shrieking, silence is the best option, otherwise there would be endless vociferous recriminations which would certainly add to noise pollution. There is real silence when a human being withdraws from the noise in order to find peace in his inner sanctuary.

Incidentally, silence can be cruel when a judge hearing a case maintains a monastic silence with the inscrutable face of the sphinx. Counsel has no clue about what the judge is thinking, whether he has understood counsel’s submissions or they have passed him by. Should counsel repeat his or her arguments or keep silent like the judge? A cruel predicament indeed and an instance of subtle judicial cruelty.

Keep merit, integrity in mind while naming judges: Moily to CJI, CJs

Union Law Minister M Veerappa Moily has written to the Chief Justice of India and Chief Justices of all High Courts, asking them to recommend names of only persons of impeccable integrity and merit for elevation to the Bench. The letter was sent out early this week.When contacted, Moily acknowledged having written the letter, saying the government wanted the judiciary to take into account aspirations of the public before recommending names for judgeship.



This comes even as questions continue to be raised over the manner in which the Supreme Court collegium recommended the name of Karnataka High Court Chief Justice P D Dinakaran for elevation to the Supreme Court despite serious charges against him. Rajya Sabha MPs have moved an impeachment motion against Dinakaran.

The Vice President has already formed a three-member committee of jurists, comprising Supreme Court Judge V S Sirpurkar, Andhra Pradesh High Court Chief Justice A R Dave and senior Supreme Court lawyer P P Rao, to investigate the charges against Dinakaran, including those of corruption and land-grabbing.

In his letter to the judiciary, Moily has requested the CJI and judges to ensure that the recommendation of names made by them take care of the aspirations of all sections of the society, including women.

“Merit should be the most important criteria. But no person of questionable integrity should be there. We would also like the recommendations to be made expeditiously so that there are no vacancies,” Moily told The Sunday Express.

Set to introduce the Judges Standards and Accountability Bill in the ongoing session of Parliament, Moily said the legislation would go a long way in tackling instances of corruption in the judiciary.

“I firmly believe that Indian judiciary is among the best and most honest in the world. But there are some aberrations. And the Judges (Inquiry) Act, which provides for only impeachment in case corruption charges are proved against sitting judges, has not had any effect. This is why the proposed Bill will be a long step forward,” he said.

“At the same time”, Moily said, “the Bill will also strengthen the judiciary. I believe in taking the judiciary along. We can’t allow judges to work under the shadow of fear or harassment. That is why the Bill has proposed strict action against anybody making frivolous, vexatious complaints against judges. We have to provide a congenial environment (to judges).”

Moily: No decision yet on retirement age of judges

Union Law Minister M Veerappa Moily on Saturday said the government is yet to consider the proposal of increasing the retirement age of the judges of the Supreme Court and high courts by three years.

Refuting speculation in a section of the government to enhance the retirement age by three years to 68 years for Supreme Court judges (from 65) and 65 years to the high court judges (from 62), Moily said there was such a move by some members of Parliament and a section of the judiciary. A section of parliamentarians had mooted the idea in order to arrest the ever-increasing gap of 250 judges at the high court level. But raising the age limit will require amendment to Article 124 (2) of the Constitution by a two-thirds majority in Parliament. It is learnt that the opposition parties, including the Left, did not accept the move to amend the Constitution to give the judges another breather of three years.

The Justice Venkatachalaiah Committee to review the working of the Constitution had suggested that the age of the judges of constitutional courts—the Supreme Court and high courts—be increased to 68 years as the retirement age for Supreme Court judges and 65 years for the high court judges.

Tenured posts in US

In the United States there is no age of retirement for federal judges. They are tenured posts. If a federal judge feels that by reason of old age he cannot function, he will receive the last drawn salary as pension for the rest of his life. In the United Kingdom and Canada, judges retire at the age of 75.

Jawaharlal Nehru, India’s first prime minister, had said in the Constituent Assembly on May 24, 1949, when the provision concerning the age of judges was taken up for consideration: “With regard to judges, and federal court judges especially, we cannot proceed on the lines of the normal administrative services. We require top men in the administrative services. Nevertheless, the type of work that a judge does is somewhat different. It is, in a sense, less physically tiring. Thus a person normally, if he is a judge, does not have to face storm and fury so much as an administrative officer might have to. But at the same, time it is a highly responsible work, and in all countries, so far as I know, age-limits for judges are far higher. In fact there are none at all.’’

Chief Justice of India K G Balakrishnan is of the opinion that the abolition of the practice of retiring SC and HC judges at the prescribed age would impart greater stability to the legal system. It will also tackle the perennial problem of shortage of judges, he felt. Speaking at the fifth national conference of the association of retired judges at Indore on April 21, 2007, the CJI had said: “Superannuation of SC judges at 65 is a sheer waste of their abilities, expertise and experience, since that’s the age when their intellectual faculties are at their peak”


In these matters we are confronted with a very important yet not very easy task of determining the nature and character of Protection provided by Article 31-B of the Constitution of India, 1950 (for short, the ‘Constitution’) to the laws added to the Ninth Schedule by amendments made after 24th April, 1973.

The relevance of this date is for the reason that on this date judgment in His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC 225] was pronounced propounding the doctrine of Basic Structure of the Constitution to test the validity of constitutional amendments.

Re : Order of Reference The order of reference made more than seven years ago by a Constitution Bench of Five Judges is reported in I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu [(1999) 7 SCC 580] (14.9.1999) .

The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by this Court in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu [(1972) 2 SCC 133] because this was not found to be a measure of agrarian reform protected by Article 31-A of the Constitution. 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 and the special leave petition filed against the judgment by the State of West Bengal was dismissed. By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth Schedule. By the Constitution (Sixty-sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth Schedule.

These insertions were the subject matter of challenge before a Five Judge Bench.

The contention urged before the Constitution Bench was that the statutes, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule.

In the referral order, the Constitution Bench observed that, according to Waman Rao & Ors. v. Union of India & Ors. [(1981) 2 SCC 362], amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule was amended from time to time by inclusion of various Acts, regulations therein were open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of Parliament since they damage the basic or essential features of the Constitution or its basic structure.

The decision in Minerva Mills Ltd. & Ors. v. Union of India & Ors. [(1980) 3 SCC 625)], Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. [(1981) 1 SCC 166] were also noted and it was observed that the judgment in Waman Rao needs to be reconsidered by a larger Bench so that the apparent inconsistencies therein are reconciled and it is made clear whether an Act or regulation which, or a part of which, is or has been found by this Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19 and 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 down. While referring these matters for decision to a larger Bench, it was observed that preferably the matters be placed before a Bench of nine Judges.

This is how these matters have been placed before us.

Broad Question The fundamental question is 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.

Development of the Law First, we may consider, in brief, the factual background of framing of the Constitution and notice the developments that have taken place almost since inception in regard to interpretation of some of Articles of the Constitution. The Constitution was framed after an in depth study of manifold challenges and problems including that of poverty, illiteracy, long years of deprivation, inequalities based on caste, creed, sex and religion. The independence struggle and intellectual debates in the Constituent Assembly show the value and importance of freedoms and rights guaranteed by Part III and State’s welfare obligations in Part-IV. The Constitutions of various countries including that of United States of America and Canada were examined and after extensive deliberations and discussions the Constitution was framed. The Fundamental Rights Chapter was incorporated providing in detail the positive and negative rights.

It provided for the protection of various rights and freedoms. For enforcement of these rights, unlike Constitutions of most of the other countries, the Supreme Court was vested with original jurisdiction as contained in Article 32.

The High Court of Patna in Kameshwar v. State of Bihar [AIR 1951 Patna 91] held that a Bihar legislation relating to land reforms was unconstitutional while the High Court of Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in those States. The parties aggrieved had filed appeals before the Supreme Court. At the same time, certain Zamindars had also approached the Supreme Court under Article 32 of the Constitution. It was, at this stage, that Parliament amended the Constitution by adding Articles 31-A and 31-B to assist the process of legislation to bring about agrarian reforms and confer on such legislative measures immunity from possible attack on the ground that they contravene the fundamental rights of the citizen. Article 31-B was not part of the original Constitution. It was inserted in the Constitution by the Constitution (First Amendment) Act, 1951.

The same amendment added after Eighth Schedule a new Ninth Schedule containing thirteen items, all relating to land reform laws, immunizing these laws from challenge on the ground of contravention of Article 13 of the Constitution. Article 13, inter alia, provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention thereof shall, to the extent of the contravention, be void.

Articles 31A and 31B read as under :

“31A. Saving of laws providing for acquisition of estates, etc. [(1) Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 :

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent :

Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

(2) In this article, (a) the expression “estate”, shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include (i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right; (ii) any land held under ryotwary settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans; (b) the expression “rights”, in relation to an estate, shall include any rights vesting in a proprietor, sub- proprietor, under-proprietor, tenure- holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.

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.” The Constitutional validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [(1952) SCR 89].

The main object of the amendment was to fully secure the constitutional validity of Zamindari Abolition Laws in general and certain specified Acts in particular and save those provisions from the dilatory litigation which resulted in holding up the implementation of the social reform measures affecting large number of people. Upholding the validity of the amendment, it was held in Sankari Prasad 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. The Constitution Bench held that to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament.

The Constitutional validity of the Acts added to the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964 was challenged in petitions filed under Article 32 of the Constitution. Upholding the constitutional amendment and repelling the challenge in Sajjan Singh v. State of Rajasthan [(1965) 1 SCR 933] the law declared in Sankari Prasad was reiterated. It was noted that Articles 31A and 31B were added to the Constitution realizing that State legislative measures adopted by certain States for giving effect to the policy of agrarian reforms have to face serious challenge in the courts of law on the ground that they contravene the fundamental rights guaranteed to the citizen by Part III. The Court observed that the genesis of the amendment made by adding Articles 31A and 31B is to assist the State Legislatures to give effect to the economic policy to bring about much needed agrarian reforms.

It noted that if pith and substance test is to apply to the amendment made, it would be clear that the Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfillment of the socio-economic policy viz. a policy in which the party in power believes. The Court further noted that the impugned act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. It noted that the object of the Act was to amend the relevant Articles in Part III which confer Fundamental Rights on citizens and as such it falls under the substantive part of Article 368 and does not attract the provision of clause (b) of that proviso.

The Court, however, noted, that if the effect of the amendment made in the Fundamental Rights on Article 226 is direct and not incidental and if in significant order, different considerations may perhaps arise.

Justice Hidayattulah, and Justice J.R. Mudholkar, concurred with the opinion of Chief Justice Gajendragadkar upholding the amendment but, at the same time, expressed reservations about the effect of possible future amendments on Fundamental Rights and basic structure of the Constitution. Justice Mudholkar questioned that “It is also a matter for consideration whether making a change in a basic feature of the 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 the purview of the Article 368?” In I.C. Golak Nath & Ors. v. State of Punjab & Anr.

[(1967) 2 SCR 762] a Bench of 11 Judges considered the correctness of the view that had been taken in Sankari Prasad and Sajjan Singh (supra). 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’s 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.

By Constitution (24th Amendment) Act, 1971, Article 13 was amended and after clause (3), the following clause was inserted as Article 13(4) :

“13(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.” Article 368 was also amended and in Article 368(1) the words “in exercise of its constituent powers” were inserted.

The Constitution (25th Amendment) Act, 1971 amended the provision of Article 31 dealing with compensation for acquiring or acquisition of properties for public purposes so that only the amount fixed by law need to be given and this amount could not be challenged in court on the ground that it was not adequate or in cash. Further, after Article 31B of the Constitution, Article 31C was inserted, namely :

“31C. Saving of laws giving effect to certain directive principles. Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy :

Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.” The Constitution (26th Amendment) Act, 1971 omitted from Constitution Articles 291 (Privy Purses) and Article 362 (rights and privileges of Rulers of Indian States) and inserted Article 363A after Article 363 providing that recognition granted to Rulers of Indian States shall cease and privy purses be abolished.

The Constitution (29th Amendment) Act, 1972 amended the Ninth Schedule to the Constitution inserting therein two Kerala Amendment Acts in furtherance of land reforms after Entry 64, namely, Entry 65 Kerala Land Reforms Amendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66 Kerala Land Reforms Amendment Act, 1971 (Kerala Act 35 of 1971).

These amendments were challenged in Kesavananda Bharati’s case. The decision in Kesavananda Bharati’s case was rendered on 24th April, 1973 by a 13 Judges Bench and by majority of seven to six Golak Nath’s case was overruled. The majority opinion held that Article 368 did not enable the Parliament 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 Article 31C that “no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” was declared unconstitutional. The Constitution 29th Amendment was held valid.

The validity of the 26th Amendment was left to be determined by a Constitution Bench of five Judges.

The majority opinion did not accept the unlimited power of the Parliament to amend the Constitution and instead held that Article 368 has implied limitations. Article 368 does not enable the Parliament to alter the basic structure or framework of the Constitution.

Another important development took place in June, 1975, when the Allahabad High Court set aside the election of the then Prime Minister Mrs. Indira Gandhi to the fifth Lok Sabha on the ground of alleged corrupt practices. Pending appeal against the High Court judgment before the Supreme Court, the Constitution (39th Amendment) Act, 1975 was passed. Clause (4) of the amendment inserted Article 329A after Article 329. Sub-clauses (4) and (5) of Article 329A read as under :

“(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

(5) Any appeal or cross appeal against any such order of any court as is referred to in Clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of Clause (4).” Clause (5) of the Amendment Act inserted after Entry 86, Entries 87 to 124 in the Ninth Schedule. Many of the Entries inserted were unconnected with land reforms.

In Smt. Indira Nehru Gandhi v. Raj Narain [1975 Supp. (1) SCC 1] the aforesaid clauses were struck down by holding them to be violative of the basic structure of the Constitution.

About two weeks before the Constitution Bench rendered decision in Indira Gandhi’s case, internal emergency was proclaimed in the country. During the emergency from 26th June, 1975 to March, 1977, Article 19 of the Constitution stood suspended by virtue of Article 358 and Articles 14 and 21 by virtue of Article 359. During internal emergency, Parliament passed Constitution (40th Amendment) Act, 1976. By clause (3) of the said amendment, in the Ninth Schedule, after Entry 124, Entries 125 to 188 were inserted. Many of these entries were unrelated to land reforms.

Article 368 was amended by the Constitution (42nd Amendment) Act, 1976. It, inter alia, inserted by Section 55 of the Amendment Act, in Article 368, after clause (3), the following clauses (4) and (5) :

“368(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.” After the end of internal emergency, the Constitution (44th Amendment) Act, 1978 was passed. Section 2, inter alia, omitted sub-clauses (f) of Article 19 with the result the right to property ceased to be a fundamental right and it became only legal right by insertion of Article 300A in the Constitution. Articles 14, 19 and 21 became enforceable after the end of emergency. The Parliament also took steps to protect fundamental rights that had been infringed during emergency. The Maintenance of Internal Security Act, 1971 and the Prevention of Publication of Objectionable Matter Act, 1976 which had been placed in the Ninth Schedule were repealed.

The Constitution (44th Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended. During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521].

The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions.

The fundamental rights received enlarged judicial interpretation in the post-emergency period. Article 21 which was given strict textual meaning in A.K Gopalan v. The State of Madras [1950 SCR 88] interpreting the words “according to procedure established by law” to mean only enacted law, received enlarged interpretation in Menaka Gandhi v. Union of India [(1978) 1 SCC 248]. A.K. Gopalan was no longer good law.

In Menaka Gandhi a Bench of Seven Judges held that the procedure established by law in Article 21 had to be reasonable and not violative of Article 14 and also that fundamental rights guaranteed by Part III were distinct and mutually exclusive rights.

In Minerva Mills case (supra), the Court struck down clauses (4) and (5) and Article 368 finding that they violated the basic structure of the Constitution.

The next decision to be noted is that of Waman Rao (supra). The developments that had taken place post- Kesavananda Bharati’s case have been noticed in this decision.

In Bhim Singhji (supra), challenge was made to the validity of Urban Land (Ceiling and Regulation) Act, 1976 which had been inserted in the Ninth Schedule after Kesavananda Bharati’s case. The Constitution Bench unanimously held that Section 27(1) which prohibited disposal of property within the ceiling limit was violative of Articles 14 and 19(1)(f) of Part III. When the said Act was enforced in February 1976, Article 19(1)(f) was part of fundamental rights chapter and as already noted it was omitted therefrom only in 1978 and made instead only a legal right under Article 300A.

It was held in L. Chandra Kumar v. Union of India & Ors. [(1997) 3 SCC 261] that power of judicial review is an integral and essential feature of the Constitution constituting the basic part, the jurisdiction so conferred on the High Courts and the Supreme Court is a part of inviolable basic structure of Constitution of India.

Constitutional Amendment of Ninth Schedule It would be convenient to note at one place, various constitutional amendments which added/omitted various Acts/provisions in Ninth Schedule from Item No.1 to 284.

It is as under :

“Amendment Acts/Provisions added 1st Amendment (1951) 1-13 4th Amendment (1955) 14-20 17th Amendment (1964) 21-64 29th Amendment (1971) 65-66 34th Amendment (1974) 67-86 39th Amendment (1975) 87-124 40th Amendment (1976) 125-188 47th Amendment (1984) 189-202 66th Amendment (1990) 203-257 76th Amendment (1994) 257A 78th Amendment (1995) 258-284 Omission In 1978 item 92 (Internal Security Act) was repealed by Parliamentary Act.

In 1977 item 130 (Prevention of Publication of Objectionable Matter) was repealed.

In 1978 the 44th amendment omitted items 87 (The Representation of People Act), 92 and 130.” Many additions are unrelated to land reforms.

The question is as to the scope of challenge to Ninth Schedule laws after 24th April, 1973 Article 32 The significance of jurisdiction conferred on this Court by Article 32 is described by Dr. B.R. Ambedkar as follows “most important Article without which this Constitution would be nullity” Further, it has been described as “the very soul of the Constitution and the very heart of it”.

Reference may also be made to the opinion of Chief Justice Patanjali Sastri in State of Madras v. V.G. Row [1952 SCR 597] to the following effect :

“This is especially true as regards the “fundamental rights” as to which the Supreme Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.” 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 [see Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India and Ors.[(1981) 1 SCC 568], State of Rajasthan v. Union of India & Ors. [(1977) 3 SCC 592], M. Krishna Swami v. Union of India & Ors. [(1992) 4 SCC 605], Daryao & Ors. v.

The State of U.P. & Ors. [(1962) 1 SCR 574] and L. Chandra Kumar (supra).

In S.R. Bommai & Ors. v. Union of India & Ors.

[(1994) 3 SCC 1] it was 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 interpretation.

It is a cardinal principle of our Constitution that no one can claim to be the sole judge of the power given under the Constitution and that its actions are within the confines of the powers given by the Constitution.

It is the duty of this Court to uphold the constitutional values and enforce constitutional limitations as the ultimate interpreter of the Constitution.

Principles of Construction The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law.

The principle of constitutionalism is now a legal principle which requires control over the exercise of 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.

Common Law Constitutionalism The protection of fundamental constitutional rights through the common law is main feature of common law constitutionalism.

According to Dr. Amartya Sen, the justification for protecting fundamental rights is not on the assumption that they are higher rights, but that protection is the best way to promote a just and tolerant society.

According to Lord Steyn, judiciary is the best institution to protect fundamental rights, given its independent nature and also because it involves interpretation based on the assessment of values besides textual interpretation.

It enables application of the principles of justice and law.

Under the controlled Constitution, the principles of checks and balances have an important role to play. Even in England where Parliament is sovereign, Lord Steyn has observed that in certain circumstances, Courts may be forced to modify the principle of parliamentary sovereignty, for example, in cases where judicial review is sought to be abolished. By this the judiciary is protecting a limited form of constitutionalism, ensuring that their institutional role in the Government is maintained.

Principles of Constitutionality There is a difference between Parliamentary and constitutional sovereignty. Our Constitution is framed by a Constituent Assembly which was not the Parliament. It is in the exercise of law making power by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19, 21 represent the foundational values which form the basis of the rule of law. These are the principles of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers. If in future, judicial review was to be abolished by a constituent amendment, as Lord Steyn says, the principle of parliamentary sovereignty even in England would require a relook. This is how law has developed in England over the years.

It is in such cases that doctrine of basic structure as propounded in Kesavananda Bharati’s case has to apply.

Granville Austin has been extensively quoted and relied on in Minerva Mills. Chief Justice Chandrachud observed that to destroy the guarantees given by Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.

Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as “transcendental”, “inalienable” and “primordial”. They constitute the ark of the Constitution. (Kesavananda Bharati P.991, P.999). The learned Chief Justice held that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution. It is to be traced for a deep understanding of the scheme of the Indian Constitution. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III.

It is in this sense that Part III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy the essential element of the basic structure of the Constitution. [Emphasis supplied] (Para 57). Further observes the learned Chief Justice, that the matters have to be decided not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. The observations made in the context of Article 31C have equal and full force for deciding the questions in these matters. Again the observations made in Para 70 are very relevant for our purposes.

It has been observed that if by a Constitutional Amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonably in public interest, the basic framework of the Constitution may remain unimpaired. But if the protection of those Articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a ‘parchment in a glass case’ to be viewed as a matter of historical curiosity.

These observations are very apt for deciding the extent and scope of judicial review in cases wherein entire Part III, including Articles 14, 19, 20, 21 and 32, stand excluded without any yardstick.

The developments made in the field of interpretation and expansion of judicial review shall have to be kept in view while deciding the applicability of the basic structure doctrine to find out whether there has been violation of any fundamental right, the extent of violation, does it destroy the balance or it maintains the reasonable balance.

The observations of Justice Bhagwati in Minerva Mills case show how clause (4) of Article 368 would result in enlarging the amending power of the Parliament contrary to dictum in Kesavananda Bharati’s case.

The learned Judge has said in Paragraph 85 that :

“So long as clause (4) stands, an amendment of the Constitution though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Kesavananda Bharati’s case, would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non-existent and it would not be incorrect to say that, covertly and indirectly, by the exclusion of judicial review, the amending power of Parliament would stand enlarged, contrary to the decision of this Court in Kesavananda Bharati case.

This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers.” In Minerva Mills while striking down the enlargement of Article 31C through 42nd Amendemnt which had replaced the words “of or any of the principles laid down in Part IV” with “the principles specified in clause (b) or clause (c) and Article 39”, Justice Chandrachud said :

“Section 4 of the Constitution (42nd Amendment) Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution.” In Indira Gandhi’s case, for the first time the challenge to the constitutional amendment was not in respect of the rights to property or social welfare, the challenge was with reference to an electoral law. Analysing this decision, H.M. Seervai in Constitutional Law of India (Fourth Edition) says that “the judgment in the election case break new ground, which has important effects on Kesavananda Bharati’s case itself (Para 30.18). Further the author says that “No one can now write on the amending power, without taking into account the effect of the Election case”. (Para 30.19).

The author then goes on to clarify the meaning of certain concepts ‘constituent power’, ‘Rigid’ (controlled), or ‘flexible’ (uncontrolled) constitution, ‘primary power’, and ‘derivative power’.

The distinction is drawn by the author between making of a Constitution by a Constituent Assembly which was not subject to restraints by any external authority as a plenary law making power and a power to amend the Constitution, a derivative power derived from the Constitution and subject to the limitations imposed by the Constitution. No provision of the Constitution framed in exercise of plenary law making power can be ultra vires because there is no touch-stone outside the Constitution by which the validity of provision of the Constitution can be adjudged. The power for amendment cannot be equated with such power of framing the Constitution.

The amending power has to be within the Constitution and not outside it.

For determining whether a particular feature of the Constitution is part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance (Chief Justice Chandrachud in Indira Gandhi’s case).

The fundamentalness of fundamental rights has thus to be examined having regard to the enlightened point of view as a result of development of fundamental rights over the years. It is, therefore, imperative to understand the nature of guarantees under fundamental rights as understood in the years that immediately followed after the Constitution was enforced when fundamental rights were viewed by this Court as distinct and separate rights. In early years, the scope of the guarantee provided by these rights was considered to be very narrow. Individuals could only claim limited protection against the State. This position has changed since long. Over the years, the jurisprudence and development around fundamental rights has 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. In The State of Bombay v. Bhanji Munji & Anr. [(1955) 1 SCR 777] relying on the ratio of Gopalan it was held that Article 31 was independent of Article 19(1)(f). However, it was in Rustom Cavasjee Cooper v. Union of India [(1970) 3 SCR 530] (popularly known as Bank Nationalization case) the view point of Gopalan was seriously disapproved. While rendering this decision, the focus of the Court was on the actual impairment caused by the law, rather than the literal validity of the law. This view was reflective of the decision taken in the case of Sakal Papers (P) Ltd. & Ors. v.

The Union of India [(1962) 3 SCR 842] where the court was faced with the validity of certain legislative measures regarding the control of newspapers and whether it amounted to infringement of Article 19(1)(a). While examining this question the Court stated that the actual effect of the law on the right guaranteed must be taken into account. This ratio was applied in Bank Nationalization case. The Court examined the relation between Article 19(1)(f) and Article 13 and held that they were not mutually exclusive.

The ratio of Gopalan was not approved.

Views taken in Bank Nationalization case has been reiterated in number of cases (see Sambhu Nath Sarkar v. The State of West Bengal & Ors. [(1974) 1 SCR 1], Haradhan Saha & Anr. v. The State of West Bengal & Ors. [(1975) 1 SCR 778] and Khudiram Das v. The State of West Bengal & Ors. [(1975) 2 SCR 832] and finally the landmark judgment in the case of Maneka Gandhi (supra). Relying upon Cooper’s case it was said that Article 19(1) and 21 are not mutually exclusive.

The Court observed in Maneka Gandhi’s case:

“The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article.

This proposition can no longer be disputed after the decisions in R. C.

Cooper’s case, Shambhu Nath Sarkar’s case and Haradhan Saha’s case. Now, if a law depriving a person of ”personal liberty’ and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given, situation, ex hypothesi it must also’ be liable to be tested with reference to Article 14. This was in fact not disputed by the learned Attorney General and indeed he could not do so in view of the clear and categorical statement made by Mukherjea, J., in A. K. Gopalan’s case that Article 21 “presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it “relates to and does not infringe any of the fundamental rights which the Constitution provides for”, including Article 14.

This Court also applied Article 14 in two of its earlier decisions, namely, The State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284 and Kathi Raning Rawat v. The State of Saurashtra [1952] S.C.R. 435]” [emphasis supplied] The decision also stressed on the application of Article 14 to a law under Article 21 and stated that even principles of natural justice be incorporated in such a test. It was held: “In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14”. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.

The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14.

It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21″.

[emphasis supplied] The above position was also reiterated by Krishna Iyer J., as follows :

“The Gopalan (supra) verdict, with the cocooning of Article 22 into a self contained code, has suffered supersession at the hands of R. C.

Cooper(1) By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the proprietariat have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of sub- conscious forces in judicial noesis when the cyclorarmic review starts from Gopalan, moves on to In re : Kerala Education Bill and then on to All India Bank Employees Union, next to Sakal Newspapers, crowning in Cooper [1973] 3 S.C.R. 530 and followed by Bennet Coleman and Sambu Nath Sarkar. Be that as it may, the law is now settled, as I apprehend it, that no article in Part III is an island but part of a continent, and the conspectus of the whole part gives the directions and correction needed for interpretation of these basic provisions.

Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.” [emphasis supplied] It is evident that it can no longer be contended that protection provided by fundamental rights comes in isolated pools. On the contrary, these rights together provide a comprehensive guarantee against excesses by state authorities. Thus post-Maneka Gandhi’s case it is clear that the development of fundamental rights has been such that it no longer involves the interpretation of rights as isolated protections which directly arise but they collectively form a comprehensive test against the arbitrary exercise of state power in any area that occurs as an inevitable consequence.

The protection of fundamental rights has, therefore, been considerably widened.

The approach in the interpretation of fundamental rights has been evidenced in a recent case M. Nagaraj & Ors. v. Union of India & Ors. [(2006) 8 SCC 212] in which the Court noted:

“This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any constitution by reason of the basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part-III of the Constitution does not confer fundamental rights.

It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

Every right has a content. Every foundational value is put in Part-III as fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which the fundamental value is incorporated.

Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. In Sakal Papers (P) Ltd. v. Union of India and Ors. [AIR 1967 SC 305] this Court has held that while considering the nature and content of fundamental rights, the Court must not be too astute to interpret the language in a literal sense so as to whittle them down.

The Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution is the early decision of the Supreme Court in A.K. Gopalan v. State of Madras. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that ‘procedure established by law’ means any procedure established by law made by the Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice.

It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan and held in its landmark judgment in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression ‘life’ in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity.

This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part-III on the principle that certain unarticulated rights are implicit in the enumerated guarantees”.

[Emphasis supplied] The abrogation or abridgment of the fundamental rights under Chapter III have, therefore, to be examined on broad interpretation, the narrow interpretation of fundamental rights chapter is a thing of past. Interpretation of the Constitution has to be such as to enable the citizens to enjoy the rights guaranteed by Part III in the fullest measure.

Seperation of Powers The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharati’s case by the majority. Later, it was reiterated in Indira Gandhi’s case. A large number of judgments have reiterated that the separation of powers is one of the basic features of the Constitution.

In fact, it was settled centuries ago 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.” Madison points out that Montesquieu did not feel that different branches could not have overlapping functions, but rather that the power of one department of government should not be entirely in the hands of another department of government.

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:

“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.” (434) Montesquieu finds tyranny pervades when there is no separation of powers:

“There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” The Supreme Court has long held that the separation of powers is part of the basic structure of the Constitution. Even before the basic structure doctrine became part of Constitutional law, the importance of the separation of powers on our system of governance was recognized by this Court in Special Reference No.1 of 1964 [(1965) 1 SCR 413].

Contentions In the light of aforesaid developments, the main thrust of the argument of the petitioners is that post-1973, it is impermissible to immunize Ninth Schedule laws from judicial review by making Part III inapplicable to such laws. Such a course, it is contended, is incompatible with the doctrine of basic structure.

The existence of power to confer absolute immunity is not compatible with the implied limitation upon the power of amendment in Article 368, is the thrust of the contention.

Further relying upon the clarification of Khanna, J, as given in Indira Gandhi’s case, in respect of his opinion in Kesavananda Bharati’s case, it is no longer correct to say that fundament rights are not included in the basic structure. Therefore, the contention proceeds that since fundamental rights form a part of 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 key question, however, is whether the basic structure test would include judicial review of Ninth Schedule laws on the touchstone of fundamental rights. Thus, it is necessary to examine what exactly is the content of the basic structure test. According to the petitioners, 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 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 consequence also is, learned counsel for the petitioners contended, to emasculate Article 32 (which is part of fundamental rights chapter) in its entirety if the rights themselves (including the principle of rule of law encapsulated in Article 14) are put out of the way, the remedy under Article 32 would be meaningless. In fact, by the exclusion of Part III, Article 32 would stand abrogated qua the Ninth Schedule laws. The contention is that the abrogation of Article 32 would be per se violative of the basic structure. It is also submitted that the constituent power under Article 368 does not include judicial power and that the power to establish judicial remedies which is compatible with the basic structure is qualitatively different from the power to exercise judicial power.

The impact is that on the one hand the power under Article 32 is removed and, on the other hand, the said power is exercised by the legislature itself by declaring, in a way, Ninth Schedule laws as valid.

On the other hand, the contention urged on behalf of the respondents is that 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, it is contended, 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.

This would also show, counsel for the respondents argued, that there is no exclusion of judicial review and consequently, there is no violation of the basic structure doctrine.

Further, it was contended that 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.

The respondents contend that the point in issue is covered by the majority judgment in Kesavananda Bharati’s case. According to that view, Article 31B or the Ninth Schedule is a permissible constitutional device to provide a protective umbrella to Ninth Schedule laws. The distinction is sought to be drawn between the necessity for the judiciary in a written constitution and judicial review by the judiciary. Whereas the existence of judiciary is part of the basic framework of the Constitution and cannot be abrogated in exercise of constituent power of the Parliament under Article 368, the power of judicial review of the judiciary can be curtailed over certain matters. The contention is that there is no judicial review in absolute terms and Article 31B only restricts that judicial review power.

It is contended that after 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. However, in every case where the constituent power excludes judicial review, the basic structure of the Constitution is not abrogated. The question to be asked in each case is, does the particular exclusion alter the basic structure. Giving immunity of Part III to the Ninth Schedule laws from judicial review, does not abrogate judicial review from the Constitution. Judicial review remains with the court but with its exclusion over Ninth Schedule laws to which Part III ceases to apply. The effect of placing a law in Ninth Schedule is that it removes the fetter of Part III by virtue of Article 31B but that does not oust the court jurisdiction.

It was further contended that Justice Khanna in Kesavananda Bharati’s case held that subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and will include within itself the power to add, alter or repeal various articles including taking away or abridging fundamental rights and that the power to amend the fundamental rights cannot be denied by describing them as natural rights. The contention is that the majority in Kesavananda Bharati’s case held that there is no embargo with regard to amending any of the fundamental rights in Part III subject to basic structure theory and, therefore, the petitioners are not right in the contention that in the said case the majority held that the fundamental rights form part of the basic structure and cannot be amended.

The further contention is that if fundamental rights can be amended, which is the effect of Kesavananda Bharati’s case overruling Golak Nath’s case, then fundamental rights cannot be said to be part of basic structure unless the nature of the amendment is such which destroys the nature and character of the Constitution. It is contended that 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. Thus, it is contended that 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. To begin with, we find it difficult to accept the broad proposition urged by the petitioners that laws that have been found by the courts to be violative of Part III of the Constitution cannot be protected by placing the same in the Ninth Schedule by use of device of Article 31B read with Article 368 of the Constitution. In Kesavananda Bharti’s case, the majority opinion upheld the validity of the Kerala Act which had been set aside in Kunjukutty Sahib etc. etc. v. The State of Kerala & Anr. [(1972) 2 SCC 364] and the device used was that of the Ninth Schedule. After a law is placed in the Ninth Schedule, its validity has to be tested on the touchstone of basic structure doctrine.

In State of Maharashtra & Ors. v. Man Singh Suraj Singh Padvi & Ors. [(1978) 1 SCC 615], a Seven Judge Constitution Bench, post-decision in Kesavananda Bharati’s case upheld Constitution (40th Amendment) Act, 1976 which was introduced when the appeal was pending in Supreme Court and thereby included the regulations in the Ninth Schedule.

It was held that Article 31B and the Ninth Schedule cured the defect, if any, in the regulations as regards any unconstitutionality alleged on the ground of infringement of fundamental rights.

It is also contended that the power to pack up laws in the Ninth Schedule in absence of any indicia in Article 31B has been abused and that abuse is likely to continue. It is submitted that the Ninth Schedule which commenced with only 13 enactments has now a list of 284 enactments. The validity of Article 31B is not in question before us. Further, 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.

Validity of 31B There was some controversy on the question whether validity of Article 31B was under challenge or not in Kesavananda Bharati. On this aspect, Chief Justice Chandrachud has to say this in Waman Rao :

In Sajjan Singh v. State of Rajasthan [(1965) 1 SCR 933], the Court refused to reconsider the decision in Sankari Prasad (supra), with the result that the validity of the 1st Amendment remained unshaken. In Golaknath, it was held by a majority of 6 : 5 that the power to amend the Constitution was not located in Article 368. The inevitable result of this holding should have been the striking down of all constitutional amendments since, according to the view of the majority, Parliament had no power to amend the Constitution in pursuance of Article 368. But the Court resorted to the doctrine of prospective overruling and held that the constitutional amendments which were already made would be left undisturbed and that its decision will govern the future amendments only. As a result, the 1st Amendment by which Articles 31A and 31B were introduced remained inviolate.

It is trite knowledge that Golaknath was overruled in Kesavananda Bharati (supra) in which it was held unanimously that the power to amend the Constitution was to be found in Article 368 of the Constitution.

The petitioners produced before us a copy of the Civil Misc. Petition which was filed in Kesavananda Bharati, (supra) by which the reliefs originally asked for were modified. It appears thereform that what was challenged in that case was the 24th, 25th and the 29th Amendments to the Constitution.

The validity of the 1st Amendment was not questioned Khanna J., however, held-while dealing with the validity of the unamended Article 31C that the validity of Article 31A was upheld in Sankari Prasad, (supra) that its validity could not be any longer questioned because of the principle of stare decisis and that the ground on which the validity of Article 31A was sustained will be available equally for sustaining the validity of the first part of Article 31C (page 744) (SCC p.812, para 1518).

We have examined various opinions in Kesavananda Bharati’s case but are unable to accept the contention that Article 31B read with the Ninth Schedule was held to be constitutionally valid in that case. The validity thereof was not in question. The constitutional amendments under challenge in Kesavananda Bharati’s case were examined assuming the constitutional validity of Article 31B. Its validity was not in issue in that case. Be that as it may, we will assume Article 31B as valid.

The validity of the 1st Amendment inserting in the Constitution, Article 31B is not in challenge before us. Point in issue The real crux of the problem is as to the extent and nature of immunity that Article 31B can validly provide. To decide this intricate issue, it is first necessary to examine in some detail the judgment in Kesavananda Bharati’s case, particularly with reference to 29th Amendment.

Kesavananda Bharati’s case The contention urged on behalf of the respondents that all the Judges, except Chief Justice Sikri, in Kesavananda Bharati’s case held that 29th Amendment was valid and applied Jeejeebhoy’s case, is not based on correct ratio of Kesavananda Bharati’s case. Six learned Judges (Ray, Phalekar, Mathew, Beg, Dwivedi and Chandrachud, JJ) who upheld the validity of 29th Amendment did not subscribe to basic structure doctrine. The other six learned Judges (Chief Justice Sikri, Shelat, Grover, Hegde, Mukherjee and Reddy JJ) upheld the 29th Amendment subject to it passing the test of basic structure doctrine.

The 13th learned Judge (Khanna, J), though subscribed to basic structure doctrine, upheld the 29th Amendment agreeing with six learned Judges who did not subscribe to the basic structure doctrine. Therefore, it would not be correct to assume that all Judges or Judges in majority on the issue of basic structure doctrine upheld the validity of 29th Amendment unconditionally or were alive to the consequences of basic structure doctrine on 29th Amendment. Six learned Judges otherwise forming the majority, held 29th amendment valid only if the legislation added to the Ninth Schedule did not violate the basic structure of the Constitution.

The remaining six who are in minority in Kesavananda Bharati’s case, insofar as it relates to laying down the doctrine of basic structure, held 29th Amendment unconditionally valid.

While laying the foundation of basic structure doctrine to test the amending power of the Constitution, Justice Khanna opined that the fundamental rights could be amended abrogated or abridged so long as the basic structure of the Constitution is not destroyed but at the same time, upheld the 29th Amendment as unconditionally valid. Thus, it cannot be inferred from the conclusion of the seven judges upholding unconditionally the validity of 29th Amendment that the majority opinion held fundamental rights chapter as not part of the basic structure doctrine. The six Judges which held 29th Amendment unconditionally valid did not subscribe to the doctrine of basic structure.

The other six held 29th Amendment valid subject to it passing the test of basic structure doctrine.

Justice Khanna upheld the 29th Amendment in the following terms:

“We may now deal with the Constitution (Twenty ninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been able to find no infirmity in the Constitution (Twenty ninth Amendment) Act.” In his final conclusions, with respect to the Twenty-ninth Amendment, Khanna, J. held as follows:

“(xv) The Constitution (Twenty-ninth Amendment) Act does not suffer from any infirmity and as such is valid.” Thus, while upholding the Twenty-ninth amendment, there was no mention of the test that is to be applied to the legislations inserted in the Ninth Schedule.

The implication that the Respondents seek to draw from the above is that this amounts to an unconditional upholding of the legislations in the Ninth Schedule.

They have also relied on observations by Ray CJ., as quoted below, in Indira Gandhi (supra). In that case, Ray CJ. observed:

“The Constitution 29th Amendment Act was considered by this Court in Kesavananda Bharati’s case. The 29th Amendment Act inserted in the Ninth Schedule to the Constitution Entries 65 and 66 being the Kerala Land Reforms Act, 1969 and the Kerala Land Reforms Act, 1971. This Court unanimously upheld the validity of the 29th Amendment Act.

The view of seven Judges in Kesavananda Bharati’s case is that Article 31-B is a constitutional device to place the specified statutes in the Schedule beyond any attack that these infringe Part III of the Constitution.

The 29th Amendment is affirmed in Kesavananda Bharati’s case (supra) by majority of seven against six Judges.

.Second, the majority view in Kesavananda Bharati’s case is that the 29th Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights.” [Emphasis supplied] The respondents have particularly relied on aforesaid highlighted portions.

On the issue of how 29th Amendment in Kesavananda Bharati case was decided, in Minerva Mills, Bhagwati, J. has said thus :

“The validity of the Twenty-ninth Amendment Act was challenged in Kesavananda Bharati case but by a majority consisting of Khanna, J. and the six learned Judges led by Ray, J. (as he then was) it was held to be valid. Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Sankari Prasad case and Sajian Singh’s case and were accepted as valid in Golak Nath case and the Twenty Ninth Amendment Act was also held valid in Kesavananda Bharati case, though not on the application of the basic structure test, and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31A with the possible exception of only four Acts referred to above, I do not think, we would be justified in re-opening the question of validity of these constitutional amendments and hence we hold them to be valid. But, all constitutional amendments made after the decision in Kesavananda Bharati case would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending power.” To us, it seems that the position is correctly reflected in the aforesaid observations of Bhagwati, J. and with respect we feel that Ray CJ. is not correct in the conclusion that 29th Amendment was unanimously upheld. Since the majority which propounded the basic structure doctrine did not unconditionally uphold the validity of 29th Amendment and six learned judges forming majority left that to be decided by a smaller Bench and upheld its validity subject to it passing basic structure doctrine, the factum of validity of 29th mendment in Kesavananda Bharati case is not conclusive of matters under consideration before us.

In order to understand the view of Khanna J. in Kesavananda Bharati (supra), it is important to take into account his later clarification. In Indira Gandhi (supra), Khanna J. made it clear that he never opined that fundamental rights were outside the purview of basic structure and observed as follows:

“There was a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati’s case that fundamental rights are not a part of the basic structure of the Constitution.

As this controversy cropped up a number of times, it seems apposite that before I conclude I should deal with the contention advanced by learned Solicitor General that according to my judgment in that case no fundamental right is part of the basic structure of the Constitution. I find it difficult to read anything in that judgment to justify such a conclusion.

What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution.

.The above observations clearly militate against the contention that according to my judgment fundamental rights are not a part of the basic structure of the Constitution. I also dealt with the matter at length to show that the right to property was not a part of the basic structure of the Constitution.

This would have been wholly unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution”.

Thus, after his aforesaid clarification, it is not possible to read the decision of Khanna J. in Kesavananda Bharati so as to exclude fundamental rights from the purview of the basic structure. The import of this observation is significant in the light of the amendment that he earlier upheld.

It is true that if the fundamental rights were never a part of the basic structure, it would be consistent with an unconditional upholding of the Twenty-ninth Amendment, since its impact on the fundamental rights guarantee would be rendered irrelevant. However, having held that some of the fundamental rights are a part of the basic structure, any amendment having an impact on fundamental rights would necessarily have to be examined in that light. Thus, the fact that Khanna J. held that some of the fundamental rights were a part of the basic structure has a significant impact on his decision regarding the Twenty-ninth amendment and the validity of the Twenty-ninth amendment must necessarily be viewed in that light. His clarification demonstrates that he was not of the opinion that all the fundamental rights were not part of the basic structure and the inevitable conclusion is that the Twenty-ninth amendment even if treated as unconditionally valid is of no consequence on the point in issue in view of peculiar position as to majority abovenoted. Such an analysis is supported by Seervai, in his book Constitutional Law of India (4th edition, Volume III), as follows: “Although in his judgment in the Election Case, Khanna J. clarified his judgment in Kesavananda’s Case, that clarification raised a serious problem of its own.

The problem was: in view of the clarification, was Khanna J. right in holding that Article 31-B and Sch. IX were unconconditionally valid? Could he do so after he had held that the basic structure of the Constitution could not be amended? As we have seen, that problem was solved in Minerva Mills Case by holding that Acts inserted in Sch. IX after 25 April, 1973 were not unconditionally valid, but would have to stand the test of fundamental rights. (Para 30.48, page 3138) But while the clarification in the Election Case simplifies one problem the scope of amending power it raises complicated problems of its own. Was Khanna J.

right in holding Art. 31-B (and Sch. 9) unconditionally valid? An answer to these questions requires an analysis of the function of Art. 31-B and Sch.

9.Taking Art. 31-B and Sch. 9 first, their effect is to confer validity on laws already enacted which would be void for violating one of more of the fundamental rights conferred by Part III (fundamental rights).

But if the power of amendment is limited by the doctrine of basic structure, a grave problem immediately arises.The thing to note is that though such Acts do not become a part of the Constitution, by being included in Sch.9 [footnote: This is clear from the provision of Article 31-B that such laws are subject to the power of any competent legislature to repeal or amend them that no State legislature has the power to repeal or amend the Constitution, nor has Parliament such a power outside Article 368, except where such power is conferred by a few articles.] they owe their validity to the exercise of the amending power. Can Acts, which destroy the secular character of the State, be given validity and be permitted to destroy a basic structure as a result of the exercise of the amending power?

That, in the last analysis is the real problem; and it is submitted that if the doctrine of the basic structure is accepted, there can be only one answer.

If Parliament, exercising constituent power cannot enact an amendment destroying the secular character of the State, neither can Parliament, exercising its constituent power, permit the Parliament or the State Legislatures to produce the same result by protecting laws, enacted in the exercise of legislative power, which produce the same result.

To hold otherwise would be to abandon the doctrine of basic structure in respect of fundamental rights for every part of that basic structure can be destroyed by first enacting laws which produce that effect, and then protecting them by inclusion in Sch. 9. Such a result is consistent with the view that some fundamental rights are a part of the basic structure, as Khanna J. said in his clarification. (Para30.65, pages 3150- 3151) In other words, the validity of the 25th and 29th Amendments raised the question of applying the law laid down as to the scope of the amending power when determining the validity of the 24th Amendment. If that law was correctly laid down, it did not become incorrect by being wrongly applied. Therefore the conflict between Khanna J.’s views on the amending power and on the unconditional validity of the 29th Amendment is resolved by saying that he laid down the scope of the amending power correctly but misapplied that law in holding Art. 31-B and Sch. 9 unconditionally valid. Consistently with his view that some fundamental rights were part of the basic structure, he ought to have joined the 6 other judges in holding that the 29th Amendment was valid, but Acts included in Sch. 9 would have to be scrutinized by the Constitution bench to see whether they destroyed or damaged any part of the basic structure of the Constitution, and if they did, such laws would not be protected. (Para30.65, page 3151)” The decision in Kesavananda Bharati (supra) regarding the Twenty-ninth amendment is restricted to that particular amendment and no principle flows therefrom.

We are unable to accept the contention urged on behalf of the respondents that in Waman Rao’s case Justice Chandrachud and in Minerva Mills case, Justice Bhagwati have not considered the binding effect of majority judgments in Kesavananda Bharati’s case. In these decisions, the development of law post-Kesavananda Bharati’s case has been considered. The conclusion has rightly been reached, also having regard to the decision in Indira Gandhi’s case that post-Kesavananda Bharati’s case or after 24th April, 1973, the Ninth Schedule laws will not have the full protection.

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. To say that these judgments have not considered the binding effect of the majority judgment in Kesavananda Bharati’s case is not based on a correct reading of Kesavananda Bharati.

On the issue of equality, we do not find any contradiction or inconsistency in the views expressed by Justice Chandrachud in Indira Gandhi’s case, by Justice Krishna Iyer in Bhim Singh’s case and Justice Bhagwati in Minerva Mills case. All these judgments show that violation in individual case has to be examined to find out whether violation of equality amounts to destruction of the basic structure of the Constitution.

Next, we examine the extent of immunity that is provided by Article 31B. The principle that constitutional amendments which violate the basic structure doctrine are liable to be struck down will also apply to amendments made to add laws in the Ninth Schedule is the view expressed by Chief Justice Sikri. Substantially, similar separate opinions were expressed by Shelat, Grover, Hegde, Mukherjea and Reddy, JJ. In the four different opinions six learned judges came to substantially the same conclusion.

These judges read an implied limitation on the power of the Parliament to amend the Constitution. Justice Khanna also opined that there was implied limitation in the shape of the basic structure doctrine that limits the power of Parliament to amend the Constitution but the learned Judge upheld 29th Amendment and did not say, like remaining six Judges, that the Twenty-Ninth Amendment will have to be examined by a smaller Constitution Bench to find out whether the said amendment violated the basic structure theory or not.

This gave rise to the argument that fundamental rights chapter is not part of basic structure. Justice Khanna, however, does not so say in Kesavananda Bharati’s case. Therefore, Kesavananda Bharati’s case cannot be said to have held that fundamental rights chapter is not part of basic structure. Justice Khanna, while considering Twenty-Ninth amendment, had obviously in view the laws that had been placed in the Ninth Schedule by the said amendment related to the agrarian reforms. Justice Khanna did not want to elevate the right to property under Article 19(1)(f) to the level and status of basic structure or basic frame-work of the Constitution, that explains the ratio of Kesavananda Bharati’s case. Further, doubt, if any, as to the opinion of Justice Khanna stood resolved on the clarification given in Indira Gandhi’s case, by the learned Judge that in Kesavananda Bharati’s case, he never held that fundamental rights are not a part of the basic structure or framework of the Constitution.

The rights and freedoms created by the fundamental rights chapter can be taken away or destroyed by amendment of the relevant Article, but subject to limitation of the doctrine of basic structure. True, it may reduce the efficacy of Article 31B but that is inevitable in view of the progress the laws have made post-Kesavananda Bharati’s case which has limited the power of the Parliament to amend the Constitution under Article 368 of the Constitution by making it subject to the doctrine of basic structure.

To decide the correctness of the rival submissions, the first aspect to be borne in mind is that each exercise of the amending power inserting laws into Ninth Schedule entails a complete removal of the fundamental rights chapter vis-`-vis the laws that are added in the Ninth Schedule. Secondly, insertion in Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of insertion is that it nullifies entire Part III of the Constitution. There is no constitutional control on such nullification. It means an unlimited power to totally nullify Part III in so far as Ninth Schedule legislations are concerned. The supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution.

It also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz. the judiciary.

While examining the validity of Article 31C in Kesavananda Bharati’s case, it was held that the vesting of power of the exclusion of judicial review in a legislature including a State legislature, strikes at the basic structure of the Constitution. It is on this ground that second part of Article 31C was held to be beyond the permissible limits of power of amendment of the Constitution under Article 368. If the doctrine of basic structure provides a touchstone to test the amending power or its exercise, there can be no dobt and it has to be so accepted that Part III of the Constitution has a key role to play in the application of the said doctrine. Regarding the status and stature in respect of fundamental rights in Constitutional scheme, it is to be remembered that Fundamental Rights are those rights of citizens or those negative obligations of the State which do not permit encroachment on individual liberties. The State is to deny no one equality before the law.

The object of the Fundamental Rights is to foster the social revolution by creating a society egalitarian to the extent that all citizens are to be equally free from coercion or restriction by the State. By enacting Fundamental Rights and Directive Principles which are negative and positive obligations of the States, the Constituent Assembly made it the responsibility of the Government to adopt a middle path between individual liberty and public good. Fundamental Rights and Directive Principles have to be balanced. That balance can be tilted in favour of the public good. The balance, however, cannot be overturned by completely overriding individual liberty.

This balance is an essential feature of the Constitution.

Fundamental rights enshrined in Part III were added to the Constitution as a check on the State power, particularly the legislative power. Through Article 13, it is provided that the State cannot make any laws that are contrary to Part III. The framers of the Constitution have built a wall around certain parts of fundamental rights, which have to remain forever, limiting ability of majority to intrude upon them. That wall is the ‘Basic Structure’ doctrine. Under Article 32, which is also part of Part III, Supreme Court has been vested with the power to ensure compliance of Part III. The responsibility to judge the constitutionality of all laws is that of judiciary. Thus, when power under Article 31B is exercised, the legislations made completely immune from Part III results in a direct way out, of the check of Part III, including that of Article 32.

It cannot be said that the same Constitution that provides for a check on legislative power, will decide whether such a check is necessary or not. It would be a negation of the Constitution. In Waman Rao’s case, while discussing the application of basic structure doctrine to the first amendment, it was observed that the measure of the permissibility of an amendment of a pleading is how far it is consistent with the original; you cannot by an amendment transform the original into opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law.

Indeed, if Article 31B only provided restricted immunity and it seems that original intent was only to protect a limited number of laws, it would have been only exception to Part III and the basis for the initial upholding of the provision. However, the unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows that it is no longer a mere exception.

The absence of guidelines for exercise of such power means the absence of constitutional control which results in 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.

It is also contended for the respondents that Article 31A excludes judicial review of certain laws from the applications of Articles 14 and 19 and that Article 31A has been held to be not violative of the basic structure. The contention, therefore, is that exclusion of judicial review would not make the Ninth Schedule law invalid. We are not holding such law per se invalid but, examining the extent of the power which the Legislature will come to possess. Article 31A does not exclude uncatalogued number of laws from challenge on the basis of Part III. It provides for a standard by which laws stand excluded from Judicial Review. Likewise, Article 31C applies as a yardstick the criteria of sub-clauses (b) and (c) of Article 39 which refers to equitable distribution of resources.

The fundamental rights have always enjoyed a special and privileged place in the Constitution. Economic growth and social equity are the two pillars of our Constitution which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15 which represent secularism etc.

As held in Nagaraj, egalitarian equality exists in Article 14 read with Article 16(4) (4A) (4B) and, therefore, it is wrong to suggest that equity and justice finds place only in the Directive Principles.

The Parliament has power to amend the provisions of Part III so as to abridge or take away fundamental rights, but that power is subject to the limitation of basic structure doctrine. Whether the impact of such amendment results in violation of basic structure has to be examined with reference to each individual case. Take the example of freedom of Press which, though not separately and specifically guaranteed, has been read as part of Article 19(1)(a). If Article 19(1)(a) is sought to be amended so as to abrogate such right (which we hope will never be done), the acceptance of respondents contention would mean that such amendment would fall outside the judicial scrutiny when the law curtailing these rights is placed in the Ninth Schedule as a result of immunity granted by Article 31B. The impact of such an amendment shall have to be tested on the touchstone of rights and freedoms guaranteed by Part III of the Constitution.

In a given case, even abridgement may destroy the real freedom of the Press and, thus, destructive of the basic structure. Take another example. The secular character of our Constitution is a matter of conclusion to be drawn from various Articles conferring fundamental rights; and if the secular character is not to be found in Part III, it cannot be found anywhere else in the Constitution because every fundamental right in Part III stands either for a principle or a matter of detail. Therefore, one has to take a synoptic view of the various Articles in Part III while judging the impact of the laws incorporated in the Ninth Schedule on the Articles in Part III.

It is not necessary to multiply the illustrations.

After enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. Justice Khanna in Kesavananda Bharati’s case was considering the right to property and it is in that context it was said that no Article of the Constitution is immune from the amendatory process. We may recall what Justice Khanna said while dealing with the words “amendment of the Constitution”. His Lordship said that these words with all the wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution.

The opinion of Justice Khanna in Indira Gandhi clearly indicates that the view in Kesavananda Bharati’s case is that at least some fundamental rights do form part of basic structure of the Constitution. Detailed discussion in Kesavananda Bharati’s case to demonstrate that the right to property was not part of basic structure of the Constitution by itself shows that some of the fundamental rights are part of the basic structure of the Constitution.

The placement of a right in the scheme of the Constitution, the impact of the offending law on that right, the effect of the exclusion of that right from judicial review, the abrogation of the principle on the essence of that right is an exercise which cannot be denied on the basis of fictional immunity under Article 31B.

In Indira Gandhi,s case, Justice Chandrachud posits that equality embodied in Article 14 is part of the basic structure of the Constitution and, therefore, cannot be abrogated by observing that the provisions impugned in that case are an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our constitution.

Dealing with Articles 14, 19 and 21 in Minerva Mills case, it was said that these clearly form part of the basic structure of the Constitution and cannot be abrogated. It was observed that three Articles of our constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power.

These Articles stand on altogether different footing. Can it be said, after the evolution of the basic structure doctrine, that exclusion of these rights at Parliament’s will without any standard, cannot be subjected to judicial scrutiny as a result of the bar created by Article 31B? The obvious answer has to be in the negative. If some of the fundamental rights constitute a basic structure, it would not be open to immunise those legislations from full judicial scrutiny either on the ground that the fundamental rights are not part of the basic structure or on the ground that Part III provisions are not available as a result of immunity granted by Article 31B. It cannot be held that essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense.

The majority opinion in Kesavananda Bharati’s case clearly is that the principles behind fundamental rights are part of the basic structure of the Constitution. It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution. Rather these rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The fundamental rights are deeply interconnected. Each supports and strengthens the work of the others. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it.

This is the ratio of the decision in Indira Gandhi case.

The history of the emergence of modern democracy has also been the history of securing basic rights for the people of other nations also. In the United States the Constitution was finally ratified only upon an understanding that a Bill of Rights would be immediately added guaranteeing certain basic freedoms to its citizens. At about the same time when the Bill of Rights was being ratified in America, the French Revolution declared the Rights of Man to Europe. When the death of colonialism and the end of World War II birthed new nations across the globe, these states embraced rights as foundations to their new constitutions. Similarly, the rapid increase in the creation of constitutions that coincided with the end of the Cold War has planted rights at the base of these documents. Even countries that have long respected and upheld rights, but whose governance traditions did not include their constitutional affirmation have recently felt they could no longer leave their deep commitment to rights, left unstated.

In 1998, the United Kingdom adopted the Human Rights Act which gave explicit affect to the European Convention on Human Rights. In Canada, the “Constitution Act of 1982” enshrined certain basic rights into their system of governance. Certain fundamental rights, and the principles that underlie them, are foundational not only to the Indian democracy, but democracies around the world. Throughout the world nations have declared that certain provisions or principles in their Constitutions are inviolable.

Our Constitution will almost certainly continue to be amended as India grows and changes. However, a democratic India will not grow out of the need for protecting the principles behind our fundamental rights.

Other countries having controlled constitution, like Germany, have embraced the idea that there is a basic structure to their Constitutions and in doing so have entrenched various rights as core constitutional commitments. India’s constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution.

The result of the aforesaid discussion is that since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down.

The extent of abrogation and limit of abridgment shall have to be examined in each case.

We may also recall the observations made in Special Reference No.1/64 [(1965) 1 SCR 413] as follows :

“…[W]hether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and there functions are normally confined to legislative functions, and the function and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country.” We are of the view that 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. Extent of Judicial Review in the context of Amendments to the Ninth Schedule We are considering the question as to the extent of judicial review permissible in respect of Ninth Schedule laws in the light of the the basic structure theory propounded in Kesavananda Bharati’s case.

In this connection, it is necessary to examine the nature of the constituent power exercised in amending a Constitution.

We have earlier noted that the power to amend cannot be equated with the power to frame the Constitution. This power has no limitations or constraints, it is primary power, a real plenary power. The latter power, however, is derived from the former. It has constraints of the document viz. Constitution which creates it. This derivative power can be exercised within the four corners of what has been conferred on the body constituted, namely, the Parliament. The question before us is not about power to amend Part III after 24th April, 1973. As per Kesavananda Bharati, power to amend exists in the Parliament but it is subject to the limitation of doctrine of basic structure.

The 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.

In Kesavananda Bharati’s case, the majority held that the power of amendment of the Constitution under Article 368 did not enable Parliament to alter the basic structure of the Constitution.

Kesavananda Bharati’s case laid down a principle as an axiom which was examined and worked out in Indira Gandhi’s case, Minerva Mills, Waman Rao and Bhim Singh.

As already stated, in Indira Gandhi’s case, for the first time, the constitutional amendment that was challenged did not relate to property right but related to free and fair election. As is evident from what is stated above that the power of amending the Constitution is a species of law making power which is the genus. It is a different kind of law making power conferred by the Constitution. It is different from the power to frame the Constitution i.e. a plenary law making power as described by Seervai in Constitutional Law of India (4th Edn.).

The scope and content of the words ‘constituent power’ expressly stated in the amended Article 368 came up for consideration in Indira Gandhi’s case. Article 329-A(4) was struck down because it crossed the implied limitation of amending power, that it made the controlled constitution uncontrolled, that it removed all limitations on the power to amend and that it sought to eliminate the golden triangle of Article 21 read with Articles 14 and 19. (See also Minerva Mills case).

It is Kesavananda Bharati’s case read with clarification of Justice Khanna in Indira Gandhi’s case which takes us one step forward, namely, that fundamental rights are interconnected and some of them form part of the basic structure as reflected in Article 15, Article 21 read with Article 14, Article 14 read with Article 16(4) (4A) (4B) etc. Bharti and Indira Gandhi’s cases have to be read together and if so read the position in law is that the basic structure as reflected in the above Articles provide a test to judge the validity of the amendment by which laws are included in the Ninth Schedule.

Since power to amend the Constitution is not unlimited, if changes brought about by amendments destroy the identity of the Constitution, such amendments would be void. That is why when entire Part III is sought to be taken away by a constitutional amendment by the exercise of constituent power under Article 368 by adding the legislation in the Ninth Schedule, the question arises as to the extent of judicial scrutiny available to determine whether it alters the fundamentals of the Constitution. Secularism is one such fundamental, equality is the other, to give a few examples to illustrate the point.

It would show that it is impermissible to destroy Article 14 and 15 or abrogate or en bloc eliminate these Fundamental Rights. To further illustrate the point, it may be noted that the Parliament can make additions in the three legislative lists, but cannot abrogate all the lists as it would abrogate the federal structure.

The question can be looked at from yet another angle also. Can the Parliament increase the amending power by amendment of Article 368 to confer on itself the unlimited power of amendment and destroy and damage the fundamentals of the Constitution? The answer is obvious. Article 368 does not vest such a power in the Parliament. It cannot lift all restrictions placed on the amending power or free the amending power from all its restrictions.

This is the effect of the decision in Kesavananda Bharati’s case as a result of which secularism, separation of power, equality, etc. to cite a few examples would fall beyond the constituent power in the sense that the constituent power cannot abrogate these fundamentals of the Constitution. Without equality the rule of law, secularism etc. would fail. That is why Khanna, J. held that some of the Fundamental Rights like Article 15 form part of the basic structure.

If constituent power under Article 368, the other name for amending power, cannot be made unlimited, it follows that Article 31B cannot be so used as to confer unlimited power. Article 31B cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth Schedule flows from Article 368. This power of amendment has to be compatible with the limits on the power of amendment.

This limit came with the Kesavananda Bharati’s case. Therefore Article 31-B after 24th April, 1973 despite its wide language cannot confer unlimited or unregulated immunity.

To legislatively override entire Part III of the Constitution by invoking Article 31-B would not only make the Fundamental Rights overridden by Directive Principles but it would also defeat fundamentals such as secularism, separation of powers, equality and also the judicial review which are the basic feature of the Constitution and essential elements of rule of law and that too without any yardstick/standard being provided under Article 31-B.

Further, it would be incorrect to assume that social content exist only in Directive Principles and not in the Fundamental Rights. Article 15 and 16 are facets of Article 14. Article 16(1) concerns formal equality which is the basis of the rule of law. At the same time, Article 16(4) refers to egalitarian equality. Similarly, the general right of equality under Article 14 has to be balanced with Article 15(4) when excessiveness is detected in grant of protective discrimination. Article 15(1) limits the rights of the State by providing that there shall be no discrimination on the grounds only of religion, race, caste, sex, etc. and yet it permits classification for certain classes, hence social content exists in Fundamental Rights as well. All these are relevant considerations to test the validity of the Ninth Schedule laws.

Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law.

These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ.

Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.

Realising that it is necessary to secure the enforcement of the Fundamental Rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution.

It may be noted that the mere fact that equality which is a part of the basic structure can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure rule of law, separation of power the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure.

On behalf of the respondents, reliance has been placed on the decision of a nine Judge Constitution Bench in Attorney General for India & Ors. v. Amratlal Prajivandas & Ors. [(1994) 5 SCC 54] to submit that argument of a violation of Article 14 being equally violative of basic structure or Articles 19 and 21 representing the basic structure of the Constitution has been rejected. Para 20 referred to by learned counsel for the respondent reads as under :

“Before entering upon discussion of the issues arising herein, it is necessary to make a few clarificatory observations.

Though a challenge to the constitutional validity of 39th, 40th and 42nd Amendments to the Constitution was levelled in the writ petitions on the ground that the said Amendments – effected after the decision in Keshavananda Bharati v. State of Kerala [1973] Suppl. SCR 1 – infringe the basic structure of the Constitution, no serious attempt was made during the course of arguments to substantiate it. It was generally argued that Article 14 is one of the basic features of the Constitution and hence any constitutional amendment violative of Article 14 is equally violative of the basic structure.

This simplistic argument overlooks the reason d’etre of Article 31B – at any rate, its continuance and relevance after Bharati – and of the 39th and 40th Amendments placing the said enactments in the IXth Schedule.

Acceptance of the petitioners’ argument would mean that in case of post-Bharati constitutional amendments placing Acts in the IXth Schedule, the protection of Article 31-B would not be available against Article 14. Indeed, it was suggested that Articles 21 and 19 also represent the basic features of the Constitution. If so, it would mean a further enervation of Article 31B. Be that as it may, in the absence of any effort to substantiate the said challenge, we do not wish to express any opinion on the constitutional validity of the said Amendments. We take them as they are, i.e., we assume them to be good and valid. We must also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14.” It is evident from the aforenoted passage that the question of violation of Articles 14, 19 or 21 was not gone into. The bench did not express any opinion on those issues. No attempt was made to establish violation of these provisions.

In Para 56, while summarizing the conclusion, the Bench did not express any opinion on the validity of 39th and 40th Amendment Acts to the Constitution of India placing COFEPOSA and SAFEMA in the Ninth Schedule. These Acts were assumed to be good and valid. No arguments were also addressed with respect to the validity of 42nd Amendment Act. Every amendment to the Constitution whether it be in the form of amendment of any Article or amendment by insertion of an Act in the Ninth Schedule has to be tested by reference to the doctrine of basic structure which includes reference to Article 21 read with Article 14, Article 15 etc. As stated, laws included in the Ninth Schedule do not become part of the Constitution, they derive their validity on account of the exercise undertaken by the Parliament to include them in the Ninth Schedule. That exercise has to be tested every time it is undertaken.

In respect of that exercise the principle of compatibility will come in. One has to see the effect of the impugned law on one hand and the exclusion of Part III in its entirety at the will of the Parliament.

In Waman Rao, it was accordingly rightly held that the Acts inserted in the Ninth Schedule after 24th April, 1973 would not receive the full protection.

Exclusion of Judicial Review compatible with the doctrine of basic structure concept of Judicial Review Judicial review is justified by combination of ‘the principle of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review’ (Democracy through Law by Lord Styen, Page 131).

The role of the judiciary is to protect fundamental rights. A modern democracy is based on the twin principles of majority rule and the need to protect fundamental rights. According to Lord Styen, it is job of the Judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights.

Application of doctrine of basic structure In Kesavananda Bharati’s case, the discussion was on the amending power conferred by unamended Article 368 which did not use the words ‘constituent power’. We have already noted difference between original power of framing the Constitution known as constituent power and the nature of constituent power vested in Parliament under Article 368. By addition of the words ‘constituent power’ in Article 368, the amending body, namely, Parliament does not become the original Constituent Assembly. It remains a Parliament under a controlled Constitution. Even after the words ‘constituent power’ are inserted in Article 368, the limitations of doctrine of basic structure would continue to apply to the Parliament. It is on this premise that clauses 4 and 5 inserted in Article 368 by 42nd Amendment were struck down in Minerva Mills case.

The relevance of Indira Gandhi’s case, Minerva Mills case and Waman Rao’s case lies in the fact that every improper enhancement of its own power by Parliament, be it clause 4 of Article 329-A or clause 4 and 5 of Article 368 or Section 4 of 42nd Amendment have been held to be incompatible with the doctrine of basic structure as they introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded. They obliterated important elements like judicial review. They made Directive Principles en bloc a touchstone for obliteration of all the fundamental rights and provided for insertion of laws in the Ninth Schedule which had no nexus with agrarian reforms.

It is in this context that we have to examine the power of immunity bearing in mind that after Kesavananda Bharati’s case, Article 368 is subject to implied limitation of basic structure.

The question examined in Waman Rao’s case was whether the device of Article 31-B could be used to immunize Ninth Schedule laws from judicial review by making the entire Part III inapplicable to such laws and whether such a power was incompatible with basic structure doctrine. The answer was in affirmative. It has been said that it is likely to make the controlled Constitution uncontrolled. It would render doctrine of basic structure redundant. It would remove the golden triangle of Article 21 read with Article 14 and Article 19 in its entirety for examining the validity of Ninth Schedule laws as it makes the entire Part III inapplicable at the will of the Parliament. This results in the change of the identify of the Constitution which brings about incompatibility not only with the doctrine of basic structure but also with the very existence of limited power of amending the Constitution.

The extent of judicial review is to be examined having regard to these factors.

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 Rights.

The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III.

There is also a difference between the ‘rights test’ and the ‘essence of right test’. Both form part of application of the basic structure doctrine. When in a controlled Constitution conferring 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. We may also note that in Minerva Mills and Indira Gandhi’s cases, elimination of Part III in its entirety was not in issue. We are considering the situation where entire equality code, freedom code and right to move court under Part III are all nullified by exercise of power to grant immunization at will by the Parliament which, in our view, is incompatible with the implied limitation of the power of the Parliament. In such a case, it is the rights test that is appropriate and is to be applied.

In Indira Gandhi’s case it was held that for the correct interpretation, Article 368 requires a synoptic view of the Constitution between its various provisions which, at first sight, look disconnected. Regarding Articles 31-A and 31-C (validity whereof is not in question here) having been held to be valid despite denial of Article 14, it may be noted that these Articles have an indicia which is not there in Article 31-B.

Part III is amendable subject to basic structure doctrine. It is permissible for the Legislature to amend the Ninth Schedule and grant a law the protection in terms of Article 31B but subject to right of citizen to assail it on the enlarged judicial review concept.

The Legislature cannot grant fictional immunities and exclude the examination of the Ninth Schedule law by the Court after the enunciation of the basic structure doctrine.

The constitutional amendments are subject to limitations and if the question of limitation is to be decided by the Parliament itself which enacts the impugned amendments and gives that law a complete immunity, it would disturb the checks and balances in the Constitution. The authority to enact law and decide the legality of the limitations cannot vest in one organ.

The validity to the limitation on the rights in Part III can only be examined by another independent organ, namely, the judiciary.

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. It has to be borne in view that the fact that some Articles in Part III stand alone has been recognized even by the Parliament, for example, Articles 20 and 21. Article 359 provides for suspension of the enforcement of the rights conferred by Part III during emergencies. However, by Constitution (44th Amendment) Act, 1978, it has been provided that even during emergencies, the enforcement of the rights under Articles 20 and 21 cannot be suspended.

This is the recognition given by the Parliament to the protections granted under Articles 20 and 21. No discussion or argument is needed for the conclusion that these rights are part of the basic structure or framework of the Constitution and, thus, immunity by suspending those rights by placing any law in the Ninth Schedule would not be countenanced.

It would be an implied limitation on the constituent power of amendment under Article 368. Same would be the position in respect of the rights under Article 32, again, a part of the basic structure of the Constitution.

The doctrine of basic structure as a principle has now become an axiom. It is premised on the basis that invasion of certain freedoms needs to be justified. It is the invasion which attracts the basic structure doctrine. Certain freedoms may justifiably be interfered with. If freedom, for example, is interfered in cases relating to terrorism, it does not follow that the same test can be applied to all the offences. The point to be noted is that the application of a standard is an important exercise required to be undertaken by the Court in applying the basic structure doctrine and that has to be done by the Courts and not by prescribed authority under Article 368.

The existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine. Therefore, such an exercise if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles thereunder.

The power to amend the Constitution is subject to aforesaid axiom. It is, thus, no more plenary in the absolute sense of the term. Prior to Kesavananda Bharati, the axiom was not there. Fictional validation based on the power of immunity exercised by the Parliament under Article 368 is not compatible with the basic structure doctrine and, therefore, the laws that are included in the Ninth Schedule have to be examined individually for determining whether the constitutional amendments by which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution. This Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has necessarily to scrutinize the Ninth Schedule laws.

It has to examine the terms of the statute, the nature of the rights involved, etc. to determine whether in effect and substance the statute violates the essential features of the Constitution. For so doing, it has to first find whether the Ninth Schedule law is violative of Part III. If on such examination, the answer is in the affirmative, the further examination to be undertaken is whether the violation found is destructive of the basic structure doctrine. If on such further examination the answer is again in affirmative, the result would be invalidation of the Ninth Schedule Law. Therefore, first the violation of rights of Part III is required to be determined, then its impact examined and if it shows that in effect and substance, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow. Every time such amendment is challenged, to hark back to Kesavananda Bharati upholding the validity of Article 31B is a surest means of a drastic erosion of the fundamental rights conferred by Part III. Article 31B gives validation based on fictional immunity.

In judging the validity of constitutional amendment we have to be guided by the impact test. The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights. Parliament is presumed to legislate compatibly with the fundamental rights and this is where Judicial Review comes in. The greater the invasion into essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so to what extent. The degree of invasion is for the Court to decide. Compatibility is one of the species of Judicial Review which is premised on compatibility with rights regarded as fundamental. The power to grant immunity, at will, on fictional basis, without full judicial review, will nullify the entire basic structure doctrine.

The golden triangle referred to above is the basic feature of the Constitution as it stands for equality and rule of law.

The result of aforesaid discussion is that the constitutional validity of the Ninth Schedule Laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and effect test, i.e., rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor.

In conclusion, we hold that :

(i) 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.

(ii) 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.

(iii) All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it differently 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.

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining 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 taking the synoptic view of the Articles in Part III as held in Indira Gandhi’s case. Applying the above 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 Schedule.

This is our answer to the question referred to us vide Order dated 14th September, 1999 in I.R. Coelho v. State of Tamil Nadu [(1999) 7 SCC 580].

(v) 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. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, 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 Article14, Article 19 and the principles underlying thereunder.

(vi) Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge.

We answer the reference in the above terms and direct that the petitions/appeals be now placed for hearing before a Three Judge Bench for decision in accordance with the principles laid down herein.


From The 226 Law Commission Reports

Since no special section in the Indian Penal Code deals with acid attacks, the incidents are not even recorded separately. Section 326 of the I.P.C, which deals with causing grievous hurt by throwing of a corrosive substance etc. is insufficient/ inadequate to deal with the issue. Firstly, the definition of grievous hurt is not broad enough to cover the various kinds of injuries which are inflicted during acid attacks. Secondly, the section does not cover the act of administering acid. Thirdly, the section gives a wide discretion to the courts as far as punishment is concerned. The cases on acid attacks in India show that normally inadequate punishment is awarded in these cases. Fourthly, the section in the I.P.C does not punish the intentional act of throwing of acid if no injuries occur. Lastly, the section also does not specify who the fine should be awarded to. We also feel that if a person has thrown or administered the acid on another person a presumption should be raised against the person, who has thrown or administered the acid, that he has done so deliberately.



Apart from the above we feel that the distribution and sale of Acid should be banned except for commercial and scientific purposes. Acid should be made a scheduled banned chemical which should not be available over the counter. The particulars of purchasers of acid should be recorded. We have also examined the various laws in different countries relating to compensation for criminal injuries. While the U.K Act provides for the setting up of a scheme, the Canadian statute sets up a Criminal Injuries Compensation Board to dispense compensation to victims of violence. The suggestion of the National Commission for Women for setting up a board specifically for acid victims has also been examined by us. We however feel that since not only victims of acid attacks but other victims of different crimes also need compensation for rehabilitation, like victims of rape, a law should be enacted to set in place Criminal Injuries Compensation Boards at the Centre, State and District levels in our country.

1. We therefore propose that a new section 326A be added to the Indian Penal Code. The proposed Section 326 A will read as  follows-

326 A. (i) Hurt by acid attack– Whoever burns or maims or disfigures or disables any part or parts of the body of a person or  causes grievous hurt by throwing acid on or administering acid to that person, with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punishable with imprisonment of either description which shall not be less than 10 years but which may extend to life and with fine which may extend to Rs. 10 Lakhs. Provided that any fine levied under this section shall be given to the person on whom acid has been thrown or administered.


Minimum Imprisonment of 10 years extendable upto imprisonment for life and fine–cognizable– non-bailable—triable by court of session—noncompoundable. (ii) Intentionally throwing or administering acid- Whoever throws acid on, or administers acid to, any person with the intention of causing burns or maiming or disfiguring or disabling or causing grievous hurt to that person shall be liable to imprisonment of either description for a term not less than 5 years but which may extend to 10 years and with fine which may extend to Rs. 5 Lakh.


1. Minimum Imprisonment of 5 years extendable upto 10 years and fine– cognizable– non-bailable—triable by court of session—noncompoundable.

2. We further propose, for the reasons stated above, that in cases of acid attack a presumption be incorporated in the Indian Evidence Act as Section 114B. The proposed Section 114B of the Indian Evidence Act shall read as under.

Section 114 B: Presumption as to acid attack-If a person has thrown  acid on, or administered acid to, another person the court shall presume that such an act has been done with the intention of causing, or with the knowledge that such an act is likely to cause such hurt or injury as is mentioned in Section 326 A of the Indian Penal Code.

3. We propose that a law known as “Criminal Injuries Compensation Act” be enacted as a separate Law by the government . This law should provide both interim and final monetary compensation to victims of certain acts of violence like Rape, Sexual Assault, Acid Attacks etc. and should provide for their medical and other expenses relating to rehabilitation, loss of earnings etc. Any compensation already received by the victim can be taken into account while computing compensation under this Act.

4. We further recommend that the distribution and sale of acid be strictly regulated and the sale of Acid across shop counters be banned.

(Justice AR. Lakshmanan)  Chairman, Law Commission of India





Closing down a court


On the judiciary’s struggle for independence from executive control.

ON March 6, 2003, the Chief Justice of the Madras High Court, Justice B. Subhashan Reddy, delivered this threat in open court: “We will have to close down the courts. We will say the government is not financially sound. We will address constitutional functionaries to invoke financial emergency. We will do it.” The Judge’s resentment was perfectly justified. The State government had not allocated to the Court the funds it needs for the due performance of its functions. How could the court function without stenographers, typists and subordinate judicial officers, he asked the Advocate-General.



The issue of financial autonomy for the judiciary must be addressed soon. No less important is the issue, which the Chief Justice’s remarks raise. Is he entitled under any circumstances to close down the courts? If so, what are they? And, what is the procedure he must follow in that event?

Obviously, to use the phrase coined by the Supreme Court apropos of the death penalty, such a drastic step can be taken only in “the rarest of rare” cases when there is an actual breakdown of the constitutional system, rendering extremely difficult the proper performance of the judiciary’s functions and duties and the exercise of its authority, power and jurisdiction.

Obviously, such a decision does not belong to the Chief Justice exclusively. He must consult all his colleagues. The perils of acting otherwise in the face of a hopelessly divided Bench are obvious. Nor can the opinion of the Bar be ignored. Next, the High Court must petition the Supreme Court and inform the President. It goes without saying that even with all these precautions the Supreme Court will declare its own closure only when the unthinkable has occurred. We came fairly close to it on June 25, 1975. Both Siddharth Shankar Ray, then Chief Minister of West Bengal, and Om Mehta, the powerful Minister of State for Home, testified before the Shah Commission about Sanjay Gandhi’s plans “to lock up the High Courts” and sever electricity connections to the newspapers the next day. The electricity was cut off. The High Courts were spared.

There is, however an excellently documented precedent which, though now forgotten, inspired more than one generation of members of the Bombay Bar. On April 1, 1829 Sir John Peter Grant, Chief Justice of the Supreme Court of Bombay, declared in open court that the Supreme Court had “ceased on all its sides, and that he would perform none of the functions of a Judge until the court had received an assurance that its authority would be respected, and its process obeyed, and rendered effectual by the Government of the Presidency” (Asiatic Register; Volume 28, page 351 onwards). He petitioned to the Privy Council and opened the court only when, as expected, the Privy Council ruled in favour of the Governor, Sir John Malcolm, and against the Chief Justice on the issue of jurisdiction. It did not care to write a judgment.

Surely even if the Chief Justice was wrong on the issue of jurisdiction, strictures on the Governor for his defiance of the court, in however measured terms, were called for. The court had issued a writ of habeas corpus. The Governor contemptuously ignored it. It is a notorious fact that very many orders of the High Court of Jammu and Kashmir are ignored. No sensible person would advocate its closure. But this case, once celebrated, deserves to be retrieved from its present obscurity. There are authentic records of the entire proceedings in the law reports, memoirs and historical writings. It is fully reported as In Re: The Justices of the Supreme Court of Judicature (May 11, 1829) in 1 Knapp’s Report, Privy Council, pages 1 to 59. It is reproduced in Volume 12, English Reports, pages 222-243.

Memories of the case were strong even over a century and a half later when, in 1862, the Supreme Court was replaced by the High Court. It was one of the three cases of the judiciary’s defiance of the executive, which inspired Chimanlal H. Setalvad and moved him to join the Bar. He was born in 1865. Before he died in 1948, he had become a legend in his lifetime for brilliance in advocacy, an acknowledged leader of the Bar and a liberal unexcelled by any of his peers in the country (vide his memoirs Recollections and Reflections; 1946, pages 9-14).

But it is the devoted and scholarly historian of the Bombay High Court, P.B. Vacha, that we must first consult to appreciate the background to the tussle. (Famous Judges, Lawyers and Cases of Bombay; 1962, pages 195-8).

The East India Company operated under Charter from the British Crown and statutes of Parliament, as its conquests increased. Vacha wrote a whole Chapter (XIII) on “Conflicts between the executive and the judiciary in Bombay” since 1687. Two Governors of Bombay appointed by the Company were men of outstanding ability and force of character. Monstuart Elphinstone (1819-1827) challenged Chief Justice Sir Edward West to a duel having insulted him and his wife at a dinner at Government House the previous evening. Edward West was the first Chief Justice of the Supreme Court, which was established in 1823 replacing the Recorder’s Court. The Supreme Court was set up by an Act of Parliament. Its jurisdiction was defined by Letters Patent with no excess of clarity as, indeed, was that of the High Court later.

Elphinstone’s successor John Malcolm earned a reputation for turbulence at school. “Jock’s at the bottom of it” teachers would say whenever a row broke out. Years later, he presented to his old teachers a copy of his famous History of Persia with the inscription “Jock’s at the bottom of it”. Bombay’s insalubrious climate exacted a heavy toll of judges’ lives. One ignores reports of poisoning by aggrieved litigants and servants. Sir Ralph Rice resigned in 1827 because of illness. He was succeeded by Sir John Peter Grant, who became Chief Justice on the death of Edward West on August 8, 1828. He was 45. Such was Edward West’s popularity that 140 Indians of all communities presented an address to the Acting Chief Justice Sir Charles Chambers and Grant.

The Bombay Gazette of October 1828 published the address dated October 1, 1828. The text is published in Bombay in the Days of George IV: Memoirs of Sir Edward West by F. Dawtrey Drewitt (Longmans Green and Co. 1935, pages 296-299. It also contains Lady West’s diary). Those were times far different from ours. “Sir Charles Chambers in answer said that neither he nor Sir J.P. Grant could receive the address; that a judge should proceed on his course without desire of applause or fear of censure; that it was a novelty to address a court of justice; that if Sir E. West were present he would be the first to approve the Judges’ determination” (page 299). (Emphasis added throughout.)

Drewitt laments: “Memories are short in India.” The Wests were soon forgotten and “the schools supported by Indian generosity became `Elphinstone College’ and Bombay Handbooks have long informed their readers that the `West’ scholarship was founded by Sir Edward West, not by the Indians he befriended” (page 300).

It is men like Chambers and Grant that Elphinstone’s successor, Malcolm, was determined to humiliate. Returning from the Chief Justice’s funeral, he dashed off to the Board of Control in London his “honest sentiments” on the choice of the next Chief Justice. His prime qualification should be that he “must view himself as an aid to the company”. In a letter to his wife he was less inhibited. “I am now engaged in battle with the Supreme Court” to prevent “the government over which I preside being trampled on, not by honest fellows with glittering sabres, but quibbling, quill-driving, lawyers.”

The judicial system was a mess. There were the King’s Courts and the Company’s Courts (“adawlats”, a corruption of adalats or courts) headed by the appeal courts the Sadr Diwani Adalat and the Sadr Foujdari Adalat, for civil and criminal cases respectively. They were independent of the Supreme Court and functioned outside the Presidency town as the highest courts of appeal in India. The Supreme Court had jurisdiction over British subjects, Indian or European, in the town and island of Bombay, the factories subordinate to it, and all the territories which then were, or thereafter might be, subject to or dependent on the government of Bombay. It was invested with the same jurisdiction and authority as the Court of King’s Bench in London had by the common law of England. Why then could the Supreme Court not issue a writ of habeas corpus as the Court of King’s Bench did in England?

Shortly after Sir Edward’s death, two writs of habeas corpus were issued by the Supreme Court to bring before itself prisoners who had been “committed by word of mouth” in Provincial Courts which were “habitually irregular and oppressive”.

In the first case Sir Charles Chambers found “no cause of detention” and ordered the prisoner’s release. In the second, a poor debtor who had been strongly imprisoned was ordered to be released.

It was the third case that triggered off the crisis. The court issued a writ of habeas corpus to the company’s provincial court in Poona for the production before it of Moro Raghunath, a boy of 14 who was in the guardianship and custody of his grand-uncle Pandurang Ramchander. The petitioner, who was the boy’s father-in-law, complained that the uncle had an evil influence on the boy.

Governor Malcolm decided to give battle on what he felt was favourable ground. The court, in his view, had exceeded its territorial jurisdiction and he would use the error to humiliate it. As he confided in a letter: “The opportunity of striking a blow at these courts was given me, and to the utmost of any strength, I will inflict it.”

The message and the messenger alike were calculated to insult the Judges. On October 3, 1828, a common servant delivered at the house of Sir Charles Chambers a letter addressed to him and to Sir John Peter Grant signed by Governor Malcolm, the Commander of the Forces, Lt. Gen. T. Bradford and two members of the Governor’s Council, J.J. Sparrow and John Romer.

In view of its historic significance it is set out in full: “Honourable Sirs,

“We are quite aware that we transgress upon ordinary forms in addressing this letter to you; but the circumstances under which we are placed will, we trust, justify this departure from usage, and our knowledge of your private and public characters lead us to hope, that what we state will be received in that spirit, in which it is written, and that, notwithstanding your strict obligations to fulfil every part of your high and sacred duty as British Judges, you will on this extra-ordinary occasion, deem yourselves at liberty to consider as much the objects, as the rules of the court over which you preside; and viewing the intention of the Legislature in its institution, as directed to the aid and support of the government entrusted with the administration of this Presidency, you will, for a short period be induced by our representations to abstain from any acts (however legal you may deem them) which, under the measures, we have felt ourselves compelled to take and which we deem essential to the interests committed to our charge, must have the effect of producing open collision between our authority and yours, and by doing so, not only diminish that respect in the native population of this country which it is so essential to both to maintain, but seriously to weaken, by a supposed division in our internal rule, those impressions on the minds of our native subjects, the existence of which is indispensable to the peace, prosperity, and permanence of the Indian empire.

“This conclusion refers to a variety of circumstances which we are equally forbid from explaining as you are from attending to such explanation; but we deem it necessary to state our conviction of the truth of what we have asserted, expecting that it may have some weight with you as connected with the preservation of the strength in the government, which in all our territories, and particularly those we have so recently acquired, is the chief, if not the only power we possess for maintaining that general peace, on the continuance of which the means of good rule, and of administering law under any form, must always depend.

“2. In consequence of recent proceedings in the Supreme Court in the cases of Moro Ragonath (1 Knapp, 8) (6) and Bappoo Gunnes (1 Knapp, 11), we have felt compelled, for reasons which we have fully stated to our superiors, to direct that no further legal proceedings be admitted in the case of Moro Ragonath; and that no returns be made to any writs of habeas corpus of a similar nature to those recently issued and directed to any officers of the provincial courts, or to any of our native subjects not residing in the island of Bombay.

“3. We are quite sensible of the deep responsibility we incur by these measures, but must look for our justification in the necessity of our situation. The grounds upon which we act have exclusive reference to considerations of civil government and of state policy; but as our resolution cannot be altered until we receive the commands of those high authorities to which we are subject, we inform you of them; and we do most anxiously hope, that the considerations we have before stated may lead you to limit yourselves to those protests and appeals against our conduct in the cases specified, that you may deem it your duty to make, as any other conduct must, for reasons already stated, prove deeply injurious to the public interests, and can, under the resolution taken and avowed by government, produce no result favourable either to the immediate or future establishment of the extended jurisdiction you have claimed. A very short period will elapse before an answer is received to the full and urgent reference we have made upon this subject; and we must again express our hope, that even the obligations under which we are sensible you act, are not so imperative as to impel you to proceedings which the government has thus explicitly stated its resolution to oppose.

“We have the honour to be, etc. etc.”

When the court assembled on October 6, Chambers had the letter read out by the Clerk of the Crown. Both Judges directed him to inform the Chief Secretary to the Government of the Bombay Presidency by letter that the Governor’s letter had been received but the Judges could take no notice of it.

Sir Charles declared that “the East India Company and those who govern their possessions, however absolute over those whom they may consider their subjects, must be told, as they have been told a thousand times before, that in the King’s Court they are entitled to more favour than other suitors.”

He ruled: “The court would not allow any individual, be his rank ever so distinguished, or his powers ever so predominant, to address it in any other way respecting our judicial and public functions, than as the humblest suitor who applies for its protection.” He added, “Within these walls we know no equal and no superior but God and the King.”

Sir John Grant fully associated himself with his brother Judge’s decision and said that it was the duty of the King’s Judges to issue writs of habeas corpus and bring before the court for examination all subjects of the King reported to be unlawfully detained. He warned that if there were loss of life in resisting the writ of the King’s Court, responsibility for the murder would rest with those who advised the resistance.

The strain was too much for Sir Charles. He died suddenly a week later. Now it was left to Sir John Grant alone to continue the fight. The Governor’s letter, he said, had killed his fellow-Judge but “they shall not kill me”. He obtained from five Judges in Madras and Calcutta the opinion that the King’s Courts had undoubted jurisdiction over all the territories subject to the Presidencies.

Sir John Grant decided to submit a petition to the King seeking royal protection against “a most unconstitutional and criminal attempt on the part of those armed with the whole power, civil and military, of this Presidency to approach Your Majesty’s Supreme Court of Judicature within the same, not by their humble petition, or by motion, by themselves or their counsel, in open court, the only ways in which the law, for the wisest purpose, permits Your Majesty’s Judges to be addressed, but by means of such covert and private communication as is strictly forbidden by the forms reared by the wisdom of sages for entrenching their persons against the danger, and even the pollution of undue solicitation or menace, and this for the declared purpose of inducing Your Majesty’s Judges, notwithstanding their most sacred obligations to God, to Your Majesty, and to themselves, to refuse to administer justice according to what they should deem to be law, in compliance with such notions those who have thus approached them may from time to time ascertain to what they shall call State policy, whenever they shall presume to allege to Your Majesty’s Judge the existence of a State necessity, whether they put the said Judges in possession of the grounds of it or not.”

In the circumstances, “it was a matter for grave and anxious consideration whether they, Your Majesty’s Judges, should not close the doors of Your Majesty’s Court until its peaceful authority should be re-established and the dangers removed which appear to surround every attempt that may be made to exert it.

However, of the two evils “encountering these dangers is the least”. Sir John Grant still preferred to proceed to discharge his duties in “a firm but dispassionate manner” despite the attempts to undermine the court’s independence “by showing that its Judges might be privately dealt with and corrupted (for fear is as corrupting as avarice), and rendered political instruments in the hands of the local government.”

The petition was a powerfully reasoned document and deserves to rank with the great historical documents, which reflect the judiciary’s struggle for independence from the executive. It recalled: “That in times of some of Your Majesty’s royal progenitors, the King’s Secretaries of State and Privy Council have detained persons in prison for reasons of State contrary to law, trusting to the circumstances for their justification; but it was never heard of, in the most arbitrary and corrupt times, that it has been proposed by the Ministers of the Crown to the King’s Judges that they should abstain from acts which they deemed legal, in obedience to the authority or from dread of the opposition of such Ministers of the Crown.

“Still less was it ever heard of that any Ministers of the Crown presumed to dictate to the King’s Judges what proceeding should be allowed or disallowed in a matter of private right depending before them, or to reprehend them for what they had done in any particular case, or to dictate to them what they should do or abstain from doing in any description of cases that might afterwards occur. Yet this is what has been done by the said Governor and Council, towards Your Majesty’s Judges in this instance.” (For text vide The Government of India by Major-General, Sir John Malcolm; John Murray, Albermorle Street, 1833, Appendix C; pages 115 to 128. Malcolm’s Minute in reply dated November 30, 1828, is at pages 130-151. It was penned at his “Camp near Beejapoor”. Malcolm’s comments on the legal system are at page 162).

The Judicial Committee of the Privy Council met at its office in Whitehall on May 14, 1829, and heard counsel for Grant and for the East India Company. It did not deliver a reasoned judgment at all; merely stated its conclusions: “That the writs of habeas corpus were improperly issued in the two cases referred to in the said petition.

“That the Supreme Court has no power or authority to issue a writ of habeas corpus except when directed either to a person resident within those local limits wherein such court has a general jurisdiction, or to a person out of such local limits, who is personally subject to the civil and criminal jurisdiction of the Supreme Court. That the Supreme Court has no power or authority to issue a writ of habeas corpus to the gaoler or officer of a native court as such officer, the Supreme Court having no power to discharge persons imprisoned under the authority of a Native Court.

“That the Supreme Court is bound to notice the jurisdiction of the Native Court, without having the same specially set forth in the return to a writ of habeas corpus.”

The Judicial Committee’s Report was approved by the entire Privy Council presided by the King, on June 10, 1829. Not content with securing the dismissal of the petition, London packed the Supreme Court by appointing John Dewar, the Advocate-General who was a friend of the Governor, as Chief Justice, and William Seymour, a barrister as puisne judge. The President of the Board of Control, Lord Ellemborough, expressed the hope that these appointments will prevent all mischief in future, as Grant will now be like a wild elephant between two tame ones.” Indira Gandhi emulated him over a century later.

It was said that when John Grant left Bombay for Calcutta, where he retired in 1848 as Judge of its Supreme Court, “the natives drew his carriage”. His portrait hangs still in the Central Court Room of the Bombay High Court where great State Trials, like those of Tilak, were held.

It is clear that the Privy Council was influenced by extra-legal consideration of which Malcolm made sinister mention in exaggerated terms in his petition in the concluding paras: “The speeches and proceedings of the court have not only been published in native newspapers, but generally disseminated by letters throughout the whole country.” Straining the readers’ credulity, he claimed the petition of Sir John Grant is spread throughout almost every part of the Deccan. An intelligent Brahmin repeated, a few days ago, almost the whole of it to me at Sattarah, and concluded by asking me, before many natives, whether the authority of the Supreme Court or that of the government would be finally established over the country.” It was a remarkable, but false, tribute to the level of education and awareness in 1828.

Malcolm concluded shrewdly with a warning of dire consequences: “Unless the power and jurisdiction of the Supreme Court of India at Bombay be clearly defined and limited… this institution will in its future encroachments, and in its collision with government, seriously weaken the authority and accelerate the downfall of our power in this quarter of India.” It worked, the Privy Council was in effect, an instrument for colonial control.

In the famous case of Ameer Khan (1870) Justice Norman heard arguments from his counsel T.C. Anstey similar to those in Grant’s petition. He attacked the Governor-General’s claim to despotic power of imprisonment without trial and the Advocate-General’s defence of that power and praise of the Viceroy. “I shall not make any comment on the glowing panegyric that has been pronounced upon the nobleman on whose behalf arbitrary power over two hundred millions of the inhabitants of this country has been demanded, further than this, that I hope my learned friend will, in another world, receive an ample reward for it, as he is certainly likely to receive in this. For my part, I shall do my duty without fear or favour. I, perhaps, may boast of the private friendship of the noble Lord (the Viceroy), but I value not the public patronage, or the private friendship of any man one straw, when it interferes with my duty to the client who trusts me with his case.”

Anstey’s peroration is probably unsurpassed in its boldness. “If Your Lordship be unable, I will not say unwilling, to contribute to this end then it will now be decided that there is no law in this country, it behoves us in that case to look well to our words, to fear the caprices of the despot of the hour to whom the Ministers of the crown on the other side of the world have unconsciously committed the destinies of 200,000,000 of souls. If then, Your Lordship’s decision be against us, I say it with grief, there will be no other remedy left to any man of spirit, whatever be his race, creed or colour except immediate departure, or open rebellion.”

The Constitution of free India itself sanctions imprisonment without trial, uniquely among the democracies and, ironically, in a chapter on Fundamental Rights. In 1976 the Supreme Court reversed High Court rulings to hold that the writ of habeas corpus was not available during the Emergency. Bombay can legitimately boast of a street that is named after Thomas Chisholm Anstey.

Beware Bhopal! Legal framework needed for India’s use of nuclear energy

The aftermath of the Union Carbide disaster in Bhopal in 1984 has vital lessons for India as it seeks to commercialise its nuclear industry without an adequate legal framework covering compensation and liability, V N Haridas and Yash Thomas Mannully write for openDemocracy.

By V N Haridas and Thomas Mannully for

The Indian government has plans for large-scale electricity generation projects, and is moving to allow an increased role for private companies, domestic and foreign, in the nuclear energy industry. But it is doing so without strengthening the legal framework covering compensation, liability, classaction and the ability to deal complex tort cases. The failure of litigation attempts properly to call Union Carbide to account for the gas tragedy at Bhopal suggests lessons that need to be learned if a legal framework is to be created which will be able to address the possible eventualities arising out of the use of nuclear energy.

India originally used nuclear energy for various social applications including energy generation through the framework provided by the Atomic Energy Act, 1962. Initially, the Atomic Energy Act provided exclusive government control. The concept of public participation was introduced later, and there are now plans gradually to open up the nuclear energy generation sector to full private participation.

Implementation of the Indo-US Joint Statement of July 18, 2005 ended India’s isolation over the peaceful use of nuclear energy. It also served to turn the spotlight away from major loopholes in the Indian legal system such as environmental protection, rehabilitation, liability and compensation and transparency.



Now the Indian government has decided to introduce in the Union Parliament’s Budget Session a piecemeal legislation called “Nuclear Liability Bill’ to cap the liability from potential accident. This article examines the legal issues raised by the Indo-US Nuclear Cooperation Agreement and the ability of the Indian legal system to address the issues associated with nuclear energy in the light of the experience gained from the Union Carbide (Dow Chemicals) Disaster at Bhopal.

Why legal framework?

A legal framework is important for the following reasons

1) Domestically a well developed legal framework covering the peaceful use of nuclear energy will foster development as well as address the problems raised by the industry especially those affecting the public.

2) Internationally it is a prerequisite for engaging in nuclear cooperation and technology transfer.

It will be beneficial to analyse the legal framework in United States and France with which India entered into Nuclear Co-operation Agreements. The gradual operationalisation of the agreements allows nuclear firms from these countries to operate without an adequate legal framework in India, while their activities are highly controlled in their home state. This brings about a situation akin to that which opened up for multinational corporations when the World Trade Organisation was established to exploit the availability of cheap labour, rich resources and inefficient legislative, legal, administrative and enforcement mechanisms. The impact of any potential hazard from the nuclear industry to the public and environment will be much higher. This in itself highlight the need to provide a legal framework covering all aspects of peaceful use of nuclear energy.

The legal framework in the US and France, unlike that in India, covers all aspects of the peaceful use of nuclear energy, especially through liability and compensation, public participation and transparency. The Price Anderson Act, for example, which was an amendment to the Atomic Energy Act, 1954 provides a unique system of nuclear liability coverage for power plants as well as for the transportation of nuclear materials to and from such facilities. It covers all losses of third party bodily injury and property damage off the site of the nuclear installations. Beyond the insurance cover and irrespective of fault, Congress, as insurer of last resort, can decide how compensation is provided in the event of a major accident. The 1966 Amendment to the Act provided for the establishment of an Extraordinary Nuclear Occurrence (ENO) for liability and also the concept of precautionary evacuation. The National Environment Policy Act (NEPA) and the Alien Torts Act further strengthens the legal framework.

The French Nuclear Programme, unlike that of the United States, is based on substantial involvement by the government in both the development and production of nuclear power. It has a liability cap and uses a single reactor system design for uniform safety systems. The liability constraints in France are based on a variety of international treaties. France adopted and modified both the Paris and Brussels Conventions in its Law on Third Party Liability in pursuant to the Paris Convention, Brussels Convention and Additional Protocols of 1964 and 1982. The major areas covered by the Act include summary procedure for getting compensation and a special tribunal with power given for emergency measures to the Public Prosecutors and the Examining Magistrates.

Another peculiar legislation is that concerning the democratisation of public enquiries and environmental protection to inform the public and obtain its comments, suggestions and counter proposals. The 1987 Act clarifies the pre-existing system of assistance, organisation plans and emergency plans to introduce more information about major risk with increased obligation to the operator for safety and risk. Article 1384.1 of the Code Civil provides an escape from liability only if the accident occurred due to force majeur or unforeseeable circumstances.

Legal framework for the use of nuclear energy in India

The Constitution of India includes the subject of atomic energy and its mineral resources in the Union List providing the Central Government exclusive control over nuclear energy. The Atomic Energy Act was enacted in 1948 and replaced in 1962 with an Act which empowers the Central Government and in turn to the Atomic Energy Commission, to do all things associated with the use of nuclear energy.

The Atomic Energy Act does not specifically deal with the question of compensating nuclear damage. Section 29 of the Atomic Energy Act of 1962 provides that; “No suit, prosecution or other legal proceeding shall lie against the Government or any person or authority in respect of anything done by it or him in good faith in pursuance of this Act or of any rule or order made under.”

This provision seems to confer immunity from legal action. In the case of a nuclear incident causing radiation exposure to the public and environment the Government will resist a claim of compensation and liability. With the approval of private firms in this area, the present legal framework’s ability to address these issues becomes yet more important.

Rhetorically it can be said that judicial activism in the field of Article 21, Constitution of India has expanded the concept of right to life and personal liberty. The Indian judiciary was able to develop compensatory jurisprudence based on Article 21 and principles like the absolute liability principle.

Developments related to Article 21 of the Constitution of India will limit the application of section 29 of the Atomic Energy Act conferring immunity on the government. But this must be considered in the light of the justice rendered to the victims of the Union Carbide Tragedy at Bhopal. This highlight the weakness of the present legal framework to provide liability, damages and even to bring those responsible for trial. Under the present legal framework, the impact of a major nuclear incident will be catastrophic. It will raise complex tort litigation which could take decades.

Union Carbide gas tragedy: Unsettled issues

The Union Carbide tragedy at Bhopal remains an outstanding example of the failure of the judiciary, government machinery and certain sections of the civil society to provide justice to the victims as well as to future generations due to inefficiency and the lack of a proper legal framework.

The experience gained from the aftermath of Union Carbide Tragedy becomes increasingly important as India enters the nuclear foray without a proper legal framework and with an underdeveloped compensation and liability regime.

Union Carbide opened its Bhopal Plant in 1968. On the night of December 2nd -3rd 1984, methyl isocyante, hydrogen cynide and other toxic gases began to leak in substantial quantities from the pesticide factory of Union Carbide India Limited (“UCIL”) in Bhopal, India. Though government figures are lower, it was estimated that around 8,000 people died in the course of 3 days of leakage. The effects were profound on the surviving population.



The Indian government passed the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 making itself the exclusive representative of the Bhopal victims and filed “unprecedented” claim in the United States Court against Union Carbide Corporation, the majority shareholder in UCIL. The case was unique, since India; a sovereign republic representing thousands of indigent victims was asking the United States judiciary to determine the liability of a Multinational Corporation. The Indian claim was to hold the parent corporation absolutely liable for foreign harms regardless of whether it was a subsidiary or head office that caused the harm, since the Multinational Corporation was in the best position to prevent those harms in its profit making enterprises.

Moreover India also argued that its laws were not developed to handle this mass tort litigation and the legal argument was based on three situations. Namely that 1) Indian legal system is inadequate for the litigation, 2) Union Carbide by its control of UCIL was responsible for the acts of its subsidiary and 3) there is overwhelming American interest in encouraging American multinational corporations to protect the health and well being of peoples throughout the world.

Union Carbide requested the US court to dismiss the action on the ground of Forum Non Conveniens, pleading that India was the appropriate forum.    The district court hearing the consolidated action resulting from these suits ultimately dismissed the case under the doctrine of forum non conveniens. This was upheld by the second circuit, which effectively denied the plaintiffs an opportunity to vindicate their legal rights in the U.S. federal courts. The decision by Justice Keenan reasoned that the dismissal would best serve US public interest factors.

After the case was dismissed in the U.S, the Government of India brought a $ 3 billion claim against Union Carbide in India. In the mean time the assets in India were sold and the money donated to build a hospital to treat victims. With regard to the liability of Multinational Corporations for the actions of its subsidiary, the interim order reached by the Bhopal District Court and the Madhya Pradesh High Court needs special emphasis, as it deviated from the perceptions held in Judge Keenan’s decision.

When the issue came before the Supreme Court of India, it failed to acknowledge the established legal principles. It also failed to pick up on the novel concept of treating businesses tightly interconnected as a single entity by piercing the corporate veil which was advanced by Judge Seth of Madhya Pradesh High Court. The Indian government agreed to an out-of-court settlement of $470 million USD in February 1989 as the full and final settlement of all civil liability.

There were cases challenging the constitutional validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, which gave the Indian central government exclusive power to represent the victims in all legal proceedings on the grounds that it made no provision for a hearing violating natural justice. Even though the Court upheld the constitutional validity of the Act, it does not clearly distinguished the validity of the Act and the settlement judgement.

The settlement order was challenged in a review petition. On review, the Supreme Court upheld the settlement but reinstated the criminal charges against UCC, UCIL and several officers including UCC Chief Executive Officer Warren Anderson. None of the accused appeared before the Bhopal courts to face criminal trial, even though before the US District Court the UCC showed its submission to Indian Jurisdiction.  The court declared UCC, UCIL, Warren Anderson and other indicated officers as absconders from justice. But no creative step like extradition proceedings were initiated, as was the case with the extradition of the “Natwest Three” from England to face charges in the US  regarding the collapse of Enron. This demonstrates the inability of the Indian Judiciary and Government to deliver justice to the victims.

The Union Carbide never provided the information regarding the composition of the leaked gases or its impact on human and environment. The factory was abandoned leaving behind large quantities of toxic waste causing health hazards to the population around it, birth defects to even second generation of children and groundwater pollution. In 2001 Union Carbide merged with Dow Chemical making Dow Chemical the largest chemical company in the world. Dow has refused to accept the moral responsibility for the actions of Union Carbide in Bhopal. In the US there are cases still ongoing regarding its legal responsibilities. Meanwhile, the local population of Bhopal continue to suffer the contamination left behind by the disaster.

Recently the Bhopal District Court has issued an order asking U.S.-based Dow Chemical Corporation to explain why it should not be required to have its subsidiary, Union Carbide, appear to face pending charges in a criminal case relating to the 1984 gas explosion which killed thousands of Bhopal residents. To escape from the issues of legal liability the Dow Company is now trying for an out of court settlement regarding the cleaning up the UCC’s abandoned Bhopal plant, while at the same time distancing itself from the UCC’s liability.

The leakage at Bhopal provides three points namely

1) the absence of legal framework for dealing multinational corporations as it was not subject to the law of its home state (United States) or its host state (India) or to international law

2) the inability of the Indian judiciary and legal profession to handle complex tort cases and

3) the extreme delay in providing justice (in its fullest sense). Moreover it also highlights the ability of the multinational corporation to escape civil and criminal liability and at the same time its ability to lobby the government machinery for escaping from cleanup costs and to continue its business.


Currently it is difficult to bring class actions under civil law and the law of torts is underdeveloped when compared with position in other states using nuclear energy. Moreover together with other issues like delay in deciding cases, restrictive approach of courts towards compensation amount, ability of the Indian legal profession to handle complex tort cases, difficulty in access to the Indian Judicial System and the need for scientific and medical evidence makes litigation in the area of nuclear damages virtually impossible for an average Indian.

The Indian government’s approach presently focuses only on maximalising the use of nuclear energy through commercialisation. Private firms are being added into the equation without any legal framework to deal the eventualities arising out of the use of nuclear energy.

An updated legislative framework is required to accompany the policy change regarding the increased use of nuclear energy together with the entry of private companies, both domestic and international. The present plans to introduce a bill in parliament to cap the liability from potential accident does not address the other issues connected with the peaceful use of atomic energy.

The only way the government can allay public fear regarding the use of nuclear energy is for it to introduce a comprehensive legal framework relating to the use of nuclear energy. This must meet issues of liability regime, compensation, public participation in decision making, waste disposal and environmental protection and relief and rehabilitation. Other wise the common man will be left to suffer the consequences. In the long term, the result would be violence and the kind of collapse of law and order which has resulted from opposition to mining and industrialisation in the eastern states of India.

V N Haridas is an openDemocracy contributor.

Witness for the prosecution


Hafiz Saeed, head of the “JuD aka LeT” (a Security Council description) figures, in popular perception, as the symbol of all that ails Indian security today: jihadi violence, Pakistani malice, US doublespeak and Indian helplessness.

Curiously, in Pakistan too, Saeed is the man they pick up after every serious incident of terror in India. He was held under preventive detention after the December 2001 attack on Parliament, after the July 2006 Mumbai train blasts, and after the November 2008 Mumbai attacks. The Lahore high court struck down each detention. Was the court left with any other option? Was any other legitimate course open to the government of Pakistan? The answers, respectively, are no and yes.

The orders of detention and the manner of justification offered for these by the Pakistani government virtually invited the writs of release. The preventive detention of 2008, in particular, was adopted instead of a viable terror law prosecution — which would have even precluded Saeed’s release on bail.

Saeed was detained in December 2008 under the Maintenance of Public Order Act (MPO). (This was just after the UN Security Council had declared the JuD to be but an alias of the LeT.)  Pakistan has not formally proscribed the JuD by naming it in the first schedule of the Anti-Terrorism Act of 1997 (ATA).  Ordering his release, the court said this: “so far as the Resolution is concerned there is no matter before us about the vires and the government can act upon the same in letter and spirit if so advised. But relying on the same, the detention cannot be maintained as it was even not desired thereby,” according to Dawn on June 3, 2009.

Without formally banning an organisation, the consequences of illegality cannot, naturally, be visited upon its members. Answers, however, were still available to be given to the court. Sections of the ATA extend the ban on a listed organisation to cover its operations under any other name. But the government did not assert that the JuD was merely another name under which the already-proscribed LeT was operating. Besides, to sustain the detention, which was under the MPO, it was sufficient, but necessary to show that Saeed was a threat to public safety. Instead, a blatantly untenable ground was pleaded — which was, consequently, rejected. Reportedly, the court was verbally told that the JuD had al-Qaeda links. Association with a banned organisation, when made out, is a case for a criminal prosecution and not really one for preventive detention, although the two are not mutually exclusive.

The court’s suggestion that the government could take appropriate action on the Security Council resolution was not followed either “in letter” or “in spirit”. Without either formally proscribing the JuD or declaring it to be impliedly banned as a front for the LeT or the Al-Qaeda, FIRs were lodged on September 16, 2009 in Faisalabad under provisions that relate to support for a “proscribed organisation”. It should have been evident to the meanest intelligence that they were doomed to be quashed. The court was bound by the earlier view (and one of a larger bench) that the JuD had not been shown to be a “proscribed organisation”. Sure enough, the court quashed the FIRs, quoting the earlier case. Those FIRs also, reportedly, recorded Saeed’s open threats to organise jihadi violence against foreign nations. This was a separate offence under the ATA, but that fact was neither mentioned in the FIR nor pointed out to the court.

The ATA defines a “terrorist act” so broadly as to include even the threat of action “designed to create insecurity”, “intimidate the public” or “to advance a sectarian, communal or ethnic cause.” The action threatened may be death, grievous injury or destruction of property. The threat of sectarian violence is a cognisable offence of terrorism by virtue of Pakistan’s loosely worded terror legislation. It is punishable with life, or at least, imprisonment of over ten years; bail is barred in any ATA offence that carries a punishment of ten years. In October 2009, the law was widened to include the intimidation of foreign agencies. Saeed’s reported February 5, 2010 speech at Muzaffarabad would clearly be one such instance.

Personally, I disapprove of altering normal procedure and restricting judicial discretion, which terror laws are prone to doing; but, clearly, many governments do not share my view. So, despite the claim that India has not given it enough evidence on Saeed, it does seem that Pakistan has, on its own, enough of law and fact to effectively contain him without pleading the excuse of judicial obstruction.

Pakistan has claimed a right to try cross-border offenders in its territory, instead of extraditing them.

Extradition, despite various UN resolutions, remains a sovereign prerogative. The exercise of the option to try the offenders, however, implies the duty to unearth the necessary evidence and seriously prosecute all those who are implicated. Pakistan is trying five men for the terrorist conspiracy behind the November 2008 Mumbai attacks, including Lakhvi, said to be a deputy of Hafiz Saeed. A proper investigation should then have yielded material on Saeed.

Dialogue with Pakistan must factor in the quality of the Lakhvi prosecution as well as the options left out in dealing with Saeed, a man whom Pakistan has acknowledged to be a terrorist.

The writer practices in the Supreme Court of India

Licence to live


In a landmark judgment, the Delhi High Court lifts the freeze on the number of cycle rickshaws allowed to ply on Delhi roads.

It is pointed out that a poor man in India lives with a rich assortment of rights guaranteed by the Constitution. Observers explain that this paradox exists because the fundamental rights of the poor citizen have been growing in recent years, through an activist interpretation of the Constitution, without making any significant impact on his or her life. This has, according to legal scholars, led to a regime of substantial rights and limited access to justice.

It is in this context that the recent Delhi High Court judgment in Manushi Sangthan, Delhi v. Government of Delhi and Others is seen as holding out a promise of how the courts can come to the help of the poor and the needy not only through a creative interpretation of the law but by ensuring that there is substantial compliance with their directions to the authorities. The judgment was delivered on February 10 by Justice Ravindra Bhat on behalf of the full court comprising Chief Justice A.P. Shah, Justice S. Muralidhar and himself.

Cycle rickshaws were introduced in Delhi in 1940 as an improvement over hand-pulled rickshaws. The number of cycle rickshaws plying on the roads of Delhi was 20,000 in 1975. The number grew to between six and seven lakhs in 2006. Cycle rickshaws are an instant source of employment for about seven to eight lakh people and involve low capital investment, typically ranging from Rs.1,200 to Rs.4,500. It is mainly the least skilled and people with the least employment opportunity, that is, seasonal migrant workers, who choose this livelihood.

The cap fixed initially by the Municipal Corporation of Delhi (MCD) on the number of licences that could be issued under the Delhi Municipal Corporation Cycle Rickshaw Bye-laws, 1960, was 750. This was increased to 20,000 in 1975 on the basis of the report of a survey. The MCD again revised the ceiling to 50,000 in 1993 on the basis of another review, even though the number of cycle rickshaws plying on the roads was 4.5 lakhs. The last revision took place in 1997, when the total number of licences that could be issued was capped at 99,000. Curiously, according to the MCD’s admission, the number of cycle rickshaws currently plying on the roads of Delhi is in excess of six lakhs.

Manushi, a welfare organisation espousing the causes of various classes of weaker sections, contended before the High Court that singling out cycle rickshaws for such a cap on licences amounted to hostile discrimination. It pointed out that there were no such quantitative restrictions on the number of licences that could be issued to motor vehicle owners. This implied that the state wished to push out other means of transport, which were cheaper, more efficacious, consumer friendly and most certainly environment friendly, Manushi submitted.

Startling figures

The figures it brought to the notice of the court were startling. More than five million motor vehicles ply on Delhi’s roads. These are owned by 15-20 per cent of the population. Eighty-five per cent of the general public depends on public transport. In other words, motorised vehicles are given undue prominence at the cost of pedestrians and owners of non-motorised vehicles, that is, those who use cycle rickshaws or bicycles.

The MCD had stuck to its ceiling on the number of cycle rickshaws on the basis of the Delhi High Court’s ruling in 2006 in the Hemraj case. The High Court accepted the petitioners’ argument that the order in the Hemraj case was issued without hearing all the affected parties, particularly cycle rickshaw pullers and owners, a blatant neglect of natural justice. The irrational cap fixed by the MCD provided a ready instrument for exploitation and harassment of rickshaw pullers.

The petitioners also brought to the court’s attention the 4th Assessment Report (2007) of the Intergovernmental Panel on Climate Change (IPCC), which emphasised the need for policies that encouraged the use of more fuel-efficient vehicles, hybrid vehicles, non-motorised transport (such as cycling and walking), and better land-use and transport planning, to minimise rise in pollution levels. A study carried out by the Ministry of Environment in 1997 had found that vehicular pollution accounts for 67 per cent of the total air pollution load in Delhi.

The court came to learn more shocking details of the MCD’s discriminatory policy. Most of the rickshaw pullers lack the resources to purchase a cycle rickshaw, but the bye-laws violated their right to rent rickshaws and carry on an occupation by holding cycle rickshaw licences.

An individual or a company may own any number of vehicles, which can be licensed or registered for use on the roads. Such choice is denied to the rickshaw puller, who cannot own and use more than one cycle rickshaw. The petitioner argued that it not only affected their livelihood but destroyed their right to equality and equal opportunity guaranteed under the Constitution.

Agreeing with these contentions, the High Court held the limit of 99,000 placed on the number of cycle rickshaw licences that could be issued as arbitrary and set it aside.

The Delhi Police justified its move to impound and dismantle unlicensed cycle rickshaws because they not only “add to the congestion on the roads and footpaths, but also occupy space as the rickshaw puller is too poor to own a residence or dwelling. He lives on the pavement, rests in the rickshaw, eats and washes on the pavements which not only causes strain on the civic resources of the city but also encourages them in developing unauthorised colonies/jhuggies giving rise to social problems in the city.” These comments invited expressions of instant surprise from the court over the Delhi Police’s lack of sensitivity.

The court said: “It would be important for public authorities, particularly law enforcement agencies, to display sensitivity when exercising the coercive powers under various statutes to the vulnerable situation in which the underprivileged populations, of which the rickshaw pullers form an integral part, are placed.”

The High Court held that the MCD or the Delhi Police had no power to seize or destroy a rickshaw even if it was found to be driven without a licence or by a person not having a proper licence.

The High Court’s interpretation of dignity of labour is of considerable significance. In the Hemraj case, the High Court felt that the plying of a cycle rickshaw offended human dignity and therefore assumed that the state would eventually eliminate the trade altogether. In the Manushi case, the High Court, however, reversed the ruling, which was based on a mere assumption and went against the freedom to practise any profession (unless it is inherently noxious), guaranteed under Article 19(1) (g) of the Constitution.

Creative interpretation

The High Court’s creative interpretation of the law also helped it to navigate through a Supreme Court judgment that favoured the MCD’s discriminatory policy. The MCD argued that the correctness of its policy requiring that only owners could ply cycle rickshaws could not be challenged since the Supreme Court had upheld it in the All Delhi Cycle Rickshaw Operators Union case in 1987. The High Court cited the established principle of constitutional law that a piece of legislation or regulation, though once held valid, can be successfully challenged if there is a significant change in circumstances. The High Court thus held that the owner-plier policy, even though it was valid 22 years ago, could not be regarded as non-discriminatory and valid now.

The MCD’s policy also required licensed cycle rickshaws to ply only in certain zones and did not provide any parking space or separate cycle lanes for rickshaws. The High Court felt it was a fit case for the authorities to explore all options to reduce road congestion and consider all proposals from an overall or holistic perspective.

By issuing continuing mandamus, an innovation started by the Supreme Court while disposing of several petitions raising public interest, the High Court resolved to monitor the implementation of its directions in this case. The MCD has decided to appeal against this judgment in the Supreme Court.



Two petitions in the Supreme Court against GM food help make the government accountable.

When Jairam Ramesh, Union Minister of State (Independent Charge) for Environment and Forests, announced his decision not to go ahead with the commercialisation of GM (genetically modified) brinjal, the concerned sections of civil society felt a huge sense of relief. This limited success of civil society would not have been possible but for the sustained efforts of two petitioners and their counsel to seek the Supreme Court’s intervention at every stage in order to make the government accountable.

The two petitioners and the vociferous demand from sections of civil society succeeded in getting the Central government to delay its decision on the issue. The move is by and large perceived to be in the public interest. Media reports about the Supreme Court’s intervention had created a huge awareness, particularly among State governments, about the safety aspects of GM crops.

The first writ petition was filed by Gene Campaign, a research and advocacy organisation that has, since 1993, been working to empower local communities to retain control over their genetic resources. Its convener, Suman Sahai, a geneticist, returned to India from Germany in 1989 after abandoning her teaching career in order to generate awareness about globalisation and its threat to food and livelihood security. The Campaign has worked in 17 States, conducting over 400 district- and village-level meetings over the years.

In 2003, the Campaign organised a national conference on the “Relevance of GM technology to Indian agriculture and food security”. The participants included the full range of stakeholders from industry, research and academia, farmers, political leaders, students and concerned citizens. They made 20 recommendations by consensus and sent them to the Department of Biotechnology (DBT), which rejected them without discussion.

In 2004, the Campaign filed a public interest petition in the Supreme Court, seeking improvements in the regulatory system for genetically modified organisms (GMOs). It urged that unless the regulatory systems were demonstrably more competent, transparent and responsive to public concerns, there should be a moratorium on the commercial release of GM crops.

Specifically, the petition asked the court to direct the Central government to bring in consonance with the Constitution the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989. It demanded that the Rules be declared unconstitutional in the event of the government failing to do so. In October 2006, acting on its application, the court directed the release of technical data relating to such crops.

Even as the court was hearing Gene Campaign’s writ petition, it admitted a writ petition from Aruna Rodrigues, from Mhow, Madhya Pradesh. Aruna Rodrigues was an unlikely gene campaigner. Having worked in England and Kuwait as a development economist for two decades, she returned to India in 1996 to launch a business enterprise to produce and sell solar electricity. Her interests ranged from climate change to nutrition. The health aspects of biodiversity soon drew her attention. Realising that it was a major problem, she looked into it in far more detail.

She found that in Gene Campaign’s petition, there was a gap in terms of scientific evidence before the court. She filed her writ petition in 2005 through her counsel, Prashant Bhushan. P.V. Satheesh from Hyderabad and Rajeev Baruah from Mhow, both specialists in organic farming, and Devinder Sharma, a policy analyst based in New Delhi, joined her as co-petitioners. In her petition, Aruna Rodrigues pointed out that the prevailing practice involved a clear conflict of interests: the test results were not available for public scrutiny and most of the testing was done by the biotech company that had a commercial interest in the approval of the GMO.

She told the court that even for technologies that had been tried and tested and found to be far safer than genetic engineering, for instance, hydroelectric projects, the statute mandates a public notice and public hearing before an environmental impact assessment (EIA) is completed.

Precautionary Principle

In her petition, she invoked other equally important grounds to challenge the government’s policy. The release of GMOs into the environment without a protocol and a transparent, independent, credible and publicly accessible system of testing them for biosafety and environmental hazards was, she said, a violation of the precautionary principle laid down by the apex court in an earlier case.

The principle makes it mandatory for the government to assess environmental risks, warn potential victims of such risks and behave in ways that prevent or mitigate such risks. It puts the onus on the developer to show that an action is environmentally benign.

She argued that any release of GMOs into the environment without the requisite scientific testing for biosafety concerns would be unconstitutional. Such indiscriminate releases would violate the fundamental right to health and environment under Article 21 of the Constitution, she said. The Supreme Court has held in a number of cases that the right to life under Article 21 includes the right to a healthy and safe environment.

The Supreme Court has also held that international treaties signed by India can be read into the country’s domestic law provided they are not in conflict with any statutory provisions. The United Nations Convention on Biological Diversity (CBD), 1992, requires that the contracting parties regulate or manage domestically the risks associated with the use and release of LMOs (Living Modified Organisms) resulting from biotechnology, introduce appropriate procedure to require impact assessment of proposed projects that are likely to have significant adverse effects on biodiversity, and allow public participation in the procedure where appropriate.

Further, Article 19(3) of the CBD urges parties to consider the need for and modalities of a protocol setting out appropriate procedures for the safe transfer, handling and use of LMOs that may have an adverse effect on the conservation and sustainable use of biodiversity. India is a signatory to the CBD, and since its provisions are not in conflict with but in aid of domestic laws, India is bound by its provisions, Aruna Rodrigues argued in her petition.

India is a signatory to the Cartagena Protocol, the binding international agreement on biosafety. The protocol aims to ensure adequate levels of protection in the field for safe transfer, handling and use of LMOs that may have adverse effects on the conservation and sustainable use of biodiversity.

The protocol stipulates, under Article 2(2), that parties must ensure that the development, handling, transport, use, transfer and release of LMOs is undertaken in a manner that prevents or reduces risk to biodiversity.

Article 10(6) of the protocol stipulates that lack of scientific certainty owing to insufficient scientific information and knowledge regarding the extent of potential adverse effects shall not prevent the contracting party from taking an appropriate decision, to avoid/minimise potential adverse effects.

The Cartagena Protocol also stipulates that parties shall consult the public in decision-making processes regarding LMOs and make all relevant decisions available to the public. Further, Article 21(6) of the protocol stipulates that information about a summary of the risk assessment cannot be made confidential.

India is required not only to put such a safety protocol in place but also to ensure that such a protocol will mandate openness, transparency and public participation.

Aruna Rodrigues’ petition pointed out that the decision to release GMOs in India without public access to information regarding the kind of safety tests conducted, and the results of the tests and an opportunity to the public to critique the tests was a violation of this provision of the Cartagena Protocol.

In addition, she pleaded that a labelling mechanism of GM food and GM products be put in place. She urged the court to direct the government to ban the import of any biological mechanism, food or animal feed unless it has been tested, certified and labelled GM-free.

Interim Orders

After hearing the petitions, the Supreme Court gave significant interim orders. On May 1, 2006, a Bench directed that field trials of GMOs shall be conducted only with the approval of the Genetic Engineering Approval Committee (GEAC). However, apprehending indiscriminate approvals by the GEAC, Aruna Rodrigues, through an interim application in 2006, prayed that field trials for all GM products be stopped. The court was not inclined to do this, but it directed the GEAC to withhold approvals until it issued further directions after hearing all concerned. The court asked the government to consider associating independent experts with the GEAC. Before suggesting the names of such experts for the purpose, the government should ask prospective candidates whether they were being funded directly or indirectly by the biotech industry, the court said in its order, making it clear that conflict of interest of members was unacceptable.

Field testing

The court directed the GEAC to examine in detail the impact of the field test being carried out on the basis of the expert opinion. On February 15, 2007, the court asked the Centre to file a report on the implications and biological results of the field tests. This was in response to a revelation by the petitioners that in 91 varieties field tests were going on without sufficient precautions being taken on contamination of plants of similar species in neighbouring fields.

The court directed the GEAC to ensure that there was a distance of at least 200 metres between the trial fields and other fields cultivating the same crop.

The court lifted its freeze on further approvals by the GEAC on May 8, 2007, as regards Bt cotton. The GEAC sought the court’s permission to consider approvals for other GM crops.

The court asked the Ministry of Environment and Forests (MoEF) to invite Dr P.M. Bhargava, molecular biologist and founder Director, Centre for Cellular and Molecular Biology, Hyderabad, and the renowned agricultural scientist M.S. Swaminathan, to its meetings before granting approvals. These two invitees would have the liberty to express their views to the committee before a final decision was taken, the court said.

The court, however, permitted the GEAC to consider any application presented to it in accordance with the law and take appropriate decisions after considering all aspects, including biosafety. Anyone aggrieved by the decision of the GEAC could appeal to the Appellate Committee, it said.

The court permitted the GEAC to put out on its website its guidelines for granting approvals. The court was apparently not convinced by the arguments that GEAC approvals might become a fait accompli and that the process of remedying wrong approvals was fraught with risks.

In the written submissions to the court in 2009, Prashant Bhushan cautioned that non-compliance with the court’s orders by the regulators meant that India faced de facto deregulation of GM crops.

He pointed out that at no time in the last two years had any tests been conducted to determine the extent of contamination in India despite a decade of GM field trials of virtually all agricultural food crops. Yet, the GEAC claimed, without any proof to back up such a claim, that there was no contamination because sufficient precautions had been taken.

There were no laboratories in India that could perform the required tests to an internationally accredited standard, he claimed. Thus far, validated test protocols had not been announced, nor had sequence information been provided to civil society groups to enable independent testing of plant material/seeds, along with permission to send samples abroad to institutions that test, he said.

He brought to the notice of the court appraisals made by two well-known independent scientists, Seralini and Judy Carmen. They had stated that Bt brinjal was not safe for release and regulatory approval for it had to be withheld on health and environmental grounds; that field trials continued unabated without biosafety tests being conducted in disregard of the ‘Rules’ and the orders of the court, which made the field trials illegal; and that the GEAC took no cognisance of any safety concerns in the matter of field testing, let alone rigour to avoid health hazards and contamination.

Prashant Bhushan’s written submissions show that Bhargava has stated that no GM crop has been adequately tested for environmental, human and animal safety before their release by the regulator. This fact can be attested to from the GEAC’s minutes themselves: “At every stage there is a bias if not deceit all the way. I am only looking at the data provided by the GEAC itself,” Bhargava has said.

Independent institution

The proposal that India must establish an independent publicly funded institution for GMO testing and appraisal has been accepted by the Supreme Court. Such an institution must be capable of undertaking all the tests that are required – both targeted and non-targeted approaches to GMO testing – to an internationally accredited standard.

It must be fully operational, independent of any conflict of interest in its staffing and autonomous in its functioning (secure from government interference).

Until such time as this institution is fully functional with the required certification, the environmental release of any GMO must be put on hold, Prashant Bhushan submitted to the court.

The GEAC has accepted, in principle, Bhargava’s proposal for the need for such an institution (minutes of the GEAC’s 85th meeting). Bhargava has also provided a blueprint for such an institute at the request of the GEAC. While the Centre’s response to this proposal is not clear, it has rejected Bhargava’s other proposal – duly endorsed by Prashant Bhushan – for a National Centre for Assessment of GMOs.

During the last hearing on January 19, 2010, Prashant Bhushan alleged that at various places, open-field testing resulted in the contamination of ordinary plants with GM plants. He argued that such testing should be done only within the greenhouse so that contamination could be avoided. Counsel for Gene Campaign, Sanjay Parekh, told the court that the rules for these experiments were not adequate and the norms were not framed properly.

The court has asked the Centre to file its response to these issues.