Dr. Justice A. K. Rajan, L L D.
Fundamental Right to Property:
On the date of commencement of the Constitution, all citizens had the fundamental right to possess property, under Article 19 (1)(f). In case, any property of the citizen is to be acquired compulsorily by the State, there was also a fundamental right, under Article 31,for the citizens to get compensation. Immediately after the commencement of the constitution,many States brought agrarian reforms by legislations. When those enactments were challenged, in spite of the saving clauses found in article 31, those laws were held void as they violated the fundamental right to property of the owners/ zamindars. One such case was Kameshwar singh Vs State of Bihar [ AIR 1951 Patna 91]. The Union Government, then invented a novel devise, not only to save all such laws which were already declared unconstitutional, but also to save any such law that may be passed, in future, by legislatures.
The 1st Amendment; insertion of Articles 31A and 31B
2. That novel devise was to amend the Constitution and to include two new Articles 31A and 31B. In the statement of objects and reasons for the amending the constitution, it was stated,inter-alia, as follows:“The validity of agrarian reform measures passed by the State legislatures in thepast three years has, inspite of …………………. Article 31,formedthe subject matter of dilatory litigation, as a result of which the implementation of these important measures, affecting large number of people has been held up. The main object of the Bill are ……………….. to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified Acts in particular”.
The purpose of including Article 31A was for “Saving of laws providing for acquisition of estates, etc.”. According to this,“ no law providing for the acquisition by the State of any estate or any right therein or for the extinguishment or modification of any such right 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 any provision of this part”.
After the 1st Amendment, this provision underwent a few more amendments.Under Article 31A, only agrarian reform laws were protected. Land acquired for, Housing purposes, flood control prevention, taking over private forests etc., were held ‘not agrarian reforms’ and hence not protected by Article 31A.
The IX Schedule
3. By the First amendment Article 31B was also included. It reads thus : “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 provision of this Part, and not withstanding 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 amendit, continue in force”.
The object of this article is to validate certain specified Acts, retrospectively, and also to protect future laws, which but for this provision could be challenged before the courts as ultra vires. By the 1st amendment 13 such laws were included in the IX Schedule. As on today, there are 284 Acts in the IX Schedule None of these laws could be challenged as void on the ground of violative of the fundamental rights.
Article 31B not controlled by Article 31A.
4. Article 31B was a device to protect, certain specific laws included in the IX Schedule, from the attack on the ground that they infringe Part III of the constitution. Article 31A does not control 31B in any manner. The two provisions are independent. That is, article 31B together with the IX Schedule, have cured the defect, if any, in the various Acts, included in the IX Schedule. Even the Acts declared void by courts would become valid and enforceable, with retrospective effect once it was included in the IX Schedule. Even pre-constitutional laws will have the same retrospective validity.. An Act included in the IX Schedule can be amended by the legislature. But the amendments will not get the protection of the IX Schedule. In case, the power to make any regulation was included in the IX Schedule, its later exercise would get the protection .
Waman Rao vs U O I
6. In the above case reported in 1981 (2)SCC362,the Supreme Court held that amendments in the IX Schedule, made before 24-4-1973, prior to the decision of Kesavanandha Bharathi, were beyond challenge. But amendments made after that date could be tested for its validity on the ground of violation of basic structure doctrine.
Minerva Mils case
7. Minerva Mills case[AIR 1980 SC 1789] also laid the same view. But, in Bhim Singh vs U O I [1981(1) SCC 166], the S.C. was considering the Urban Land Ceiling Act 1976, which was included in the IX Schedule. The court held one part of it was unconstitutional as they violated Article 14 and 19(1) (f). In view of the different statements made by different judges, in these two cases, on the Court’s powerto examine the validity of the Acts inserted intothe IX Schedule, on the ground of violation of basic structure, the Coelho court has referred the matter to a larger Bench.
I.R. Coelho vs State of T.N. [1999(7) SCC 580]
8. In this case, a nine-member bench of Supreme Court held that the IX Schedule items are not immune to judicial review, as it is part of the constitution. Therefore, nothing in the Ninth schedule can abrogate fundamental rights as they form basic features of the constitution. The objective behind Article 31B of the Constitution is to remove difficulties and not to wipe out judicial review per se. Hence, every amendment to the constitution including amendment to the Ninth schedule has to be in accordance with the basic structure doctrine.
9. Therefore, even as per Coelho decision, the challenge to an Act included in the IX Schedule is limited to basic structure doctrine. Reservations were always held not violative of equality clause. On the other hand, it is one of the basic structures of the constitution to ensure ‘equality in fact’. In fact, the Urban Land ceiling Act itself was already repealed. Further the second Minerva Mills case in 1986, has changed its earlier view. The question of the Court’s power to examine the validity of the inserted Acts on the ground of violation of basic structure was referred to larger bench. In 2007 the reference was answered by a NINEjudges Bench, of the Supreme Court.
I.R. Coelho VS State of Tamil Nadu [2007]
10. After hearing the arguments, the Supreme Court on 11-01-2007, answered the reference thus: 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.
T.N. Act 45 of 1993 is a Part of the Constitution
11. In so far as the T.N Act is concerned, since it is included in the IX Schedule, if at all it can be challenged it can be only on the ground it alters the ‘basic structure’ doctrine. Since inclusion into IX Schedule was done by a constitutional amendment, it is also a part of the Constitution.It is more than a Notification by the President of India.
Schedule in the T. N. Act cannot be altered
12. In future even when the president of India issues a Notification under Article 342A, the T.N. Act and the Schedule of Backward communities and SC & STs, found in that Act, cannot be altered.That is because, Notification is an executive act, it cannot override the constitutional amendment.The recent judgment of the S.C. will have no effect on T.N. 69% Reservation.
‘Maharashtra’ case -SC judgment 2021
13. The SC in the above case relied on the definition under Article 366 clause (26C), which defines ‘Socially and educationally backward classes of citizens’[SEBC] as so ‘deemed under Article 342A for the purposes of this constitution’.
Non – application of mind
14. While conferring constitutional status to S.T. Commission, similar to the S.C. Commission, the Same phrases and wordings found in Article 338 was repeated in Article 338A. The same method of, copying the same phrases and wordings, were followed, while drafting Article 338B and creating SEBC Commission. This was done with non-application of mind on the subject matter. The authorities, it appears, while drafting this Article 338B, were oblivion of the fact that the communities classified as SCs and STs, were finalised and Scheduled as early as 1932 and that is not the case w.r.t. SEBCs.
State- Lists of SEBCs were not taken note of
15. It is to be noted that all the definitions would be qualified with the words “unless the context otherwise requires”. That is, the definitions may not have the same meaning always and it would mean different, depending on the context where it is used. ‘State’ is defined in Article 12, for the purposes of Part III, Fundamental Rights. It reads as “ In this Part unless the context otherwise requires”, then ‘State’ is defined.
Violation of ‘basic structure’ doctrine
16. Similar is the use of the phrase in Article 366 (26C). Article 15(4),and 15(5) do not prevent the ‘States’ from ‘making any special provision for the advancement of socially and educationally backward classes of citizens and Scheduled castes and Scheduled Tribes’. Almost all the States were making such special arrangements for their advancements, in their own way, right from 1951. They have that power of identifying the SEBCs. That is one of the basic structures of the constitution to bring equality among the citizens within the State. Now this definition in Article 366(26C) and Article 242A, alters that position. That appears, undoubtedly a violation of a basic structure of the constitution,viz the federal structure of the Constitution. India is not one ‘State’. It is a Union of States.
Maharashtra Judgment needs to be reviewed
17. Under the circumstances the Maharashtra judgment may have to reviewed. During the Covid lockdown all the legal arguments by all the States would not have been advanced fully. It is doubtful if all the States were given notice and their views were heard. Hence, that judgment needs to be reviewed to give opportunity to all the States,to advance their arguments on the issue of the right of the ‘States’ to identify the SEBCs.
Review filed by Government of India
18. The Central Government has, on13-5-2021, filed a Review-petition to review the Maharashtra judgment. In all probability, the Supreme Court is likely to issue Notice to all the States, and finally, may direct the Government of India, to suitably amend Article 342A and also Article 366(26C) of the Constitution. The operation of this judgment may be suspended till such time.
