This article contains a brief note for the leading case of I.R. Coelho v. State of T.N., (2007) 2 SCC 1 : AIR 2007 SC 861, which is a part of the paper “Leading Cases” for the Supreme Court Advocate on Record Examination 2015. This note was a part of my lecture delivered in 2013 to about 100+ Advocates who were preparing for the AOR examination. It is a part of the AOR series on leading cases.
I.R. Coelho v. State of T.N., (2007) 2 SCC 1 : AIR 2007 SC 861:
On 24.04.1973, the decision in Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225, was delivered, wherein the basic structure doctrine was propounded, holding that the basic structure of the Constitution cannot be damaged or destroyed.
In the case of I.R. Coelho v. State of T.N., (2007) 2 SCC 1 : AIR 2007 SC 861, the question before the Supreme Court was whether, after the said date of 24.04.1973, when the Kesavananda Bharti decision was pronounced, is it permissible for Parliament under Article 31-B of the Constitution to immunise legislations from being struck down for violation of fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Supreme Court and the High Courts.
Article 31-B is reproduced below:
“31-B. Validation of certain Acts and Regulations.—Without prejudice to the generality of the provisions contained in Article 31-A, 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.”
A 9-Judge Bench of the Supreme Court held unanimously that all amendments to the Constitution made on or after April 24, 1973 (i.e., the date on which the said Kesavananda Bharati case was decided) by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic 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.
It was held that:
- All amendments to the Constitution made on or after 24-04-1973 by which the Ninth Schedule has been amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution. Further, after a law is placed in the Ninth Schedule, its validity has to be tested on the touchstone of the basic structure doctrine.
- The object behind Article 31-B is to remove difficulties and not to obliterate judicial review or Part III in its entirety. Therefore 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.
- Laws included in the Ninth Schedule do not become part of the Constitution, they derive their validity on account of the exercise undertaken by Parliament to include them in the Ninth Schedule. That exercise has to be tested every time it is undertaken.
- Can 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 Parliament. It cannot lift all restrictions placed on the amending power or free the amending power from all its restrictions. If constituent power under Article 368, the other name for amending power, cannot be made unlimited, it follows that Article 31-B cannot be so used as to confer unlimited power. Article 31-B 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 Kesavananda Bharati case. Therefore Article 31-B after 24-04-1973 despite its wide language cannot confer unlimited or unregulated immunity.
- 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 the basic structure doctrine.
- The view in Kesavananda is that at least some fundamental rights do form part of basic structure of the Constitution.
- The golden triangle of Arts. 14, 19 and 21 as it stands for equality and rule of law, along with Arts. 15, 20 and 32, etc. clearly form part of the basic structure of the Constitution and cannot be abrogated.
- After enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. Jurisdiction of judicial review so conferred on High Courts and Supreme Court is part of the inviolable basic structure of the Constitution.
IMPORTANT: Read notes on other leading cases for the SC AOR Examination: AOR Series.
