| • Chief Minister, Uttar Pradesh (Fourth-time) |
| • National President, Bahujan Samaj Party (BSP) |
| • Member of Uttar Pardesh Legislative Council |
| KUMARI MAYAWATI | |
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COURT ORDERS |
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| IX SCHEDULE LAWS OPEN TO REVIEW Apex Court to examine laws included after 1973 |
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| 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 cts inserted in the Ninth Schedule after 24th April, 1973 would not receive the full protection. Exclusion of Judicial Review compatible with the 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 structureIn 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. |
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