Petitioner: I.R. Coelho (Dead) By LRs
Respondent: State of Tamil Nadu and others
Civil appeal no: 1344-45 of 1976 Citation: (2007) 2 SCC 1: AIR 2007 SC 861 Bench:
1. Hon’ble Justice Y.K Sabharwal Singh.
2. Hon’ble Justice S.H Kapadia
3. Hon’ble Justice C.H Thakker.
4. Hon’ble Justice D.K Jain.
5. Hon’ble Justice P.K Balasubramanyan
6. Hon’ble Justice Altamas Kabir.
7. Hon’ble Justice Ashok Bhan.
8. Hon’ble Justice B.P Singh.
9. Hon’ble Justice Arijit Pasayat.
The I.R Coelho case contend a significant role in determining the power of judiciary once it involves review. This case took out a distinction and restricted the capricious actions of the legislature underneath the guise of Article 368. This case can also be termed the ninth schedule case. The court during this case set down that any law or acts infringing upon basic rights or violating the fundamental structure of our constitution wouldn't be exempted from judicial review. This judgement was given holding the fundamental structure doctrine propounded in Kesavananda Bharti case as precedent.
CONSTITUTIONAL PROVISIONS MENTIONED
Article 31-B, Article 31-A, ninth Schedule, Article 368, Article 14, 19, 21 and 32.
The case arose owing to the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act). This act that endowed forest lands within the Jamnam estates in Tamil Nadu was stricken down by Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu.
The court during this case set down that any law or acts infringing upon basic rights or violating the fundamental structure of our constitution wouldn't be exempted from judicial review. This judgement was given holding the fundamental structure doctrine propounded in Kesavananda Bharti case as precedent. by article 31-A of the Constitution. However, the Jamnam Act in its completeness was superimposed within the ninth Schedule by the method of the Constitution (Thirty-fourth Amendment) Act. The argument urged before the Constitution Bench was that the statutes, that had been antecedently stricken down, couldn't be a section of the Ninth Schedule.
The Constitution Bench, in its referral, noted that in step with the Waman Rao Case, insertion of amendments within the Constitution succeeding the Kesavananda Bharti case by inserting new laws into the Ninth Schedule, will be challenged in the wake that they're infringing of the fundamental rights provided in Articles 14, 19 and 31.
Therefore, the referral asked the 9-judge bench to relook into the Waman Rao judgement and confirm whether or not it has to be overruled or not.
Can the 9th Schedule be exempted from judicial scrutiny?
Can the basic rights if found contravening, within the ninth schedule can be challenged before the courts?
Whether the basic structure test would include judicial review of Ninth Schedule laws on the measure of fundamental rights?
To what extent and nature of immunity will Article 31-B with validity provide?
CONTENTIONS BY PETITIONERS
The petitioners contended that the Ninth Schedule laws can't be presented with constitutional immunity of the sort provided by Article 31-B and if such immunity is given it ought to be adjudged by the direct impact and impact test. It implies that the form of amendment wouldn't be relevant, however the consequence would play a determinative element.
It absolutely was submitted that competency to shape any law transgresses part III and isn't in alignment with the fundamental structure of the Constitution. The consequence of such capricious can if allowed would abolish Article thirty two and be breaching of the fundamental structure of the Constitution.
Further, It absolutely was more submitted that the Constituent power under Article 368 isn't comprehensive of judicial power. The competency to determine judicial remedies is qualitatively different from the potentiality to exercise judicial power.
CONTENTIONS BY RESPONDENTS
The respondents contended that the Validity of Ninth Schedule legislations will wholly be tested on the criterion of basic structure doctrine as determined by majority in Kesavananda Bharati’s case because the case had upheld the twenty ninth amendment it absolutely was submitted that there couldn't be any question of review on in the wake of violation of fundamental rights.
It was submitted that fundamental Rights are excluded by the protection provided by Article 31-B. Thus, the challenge will be primarily based wholly on the fundamental structure doctrine.
Further, it absolutely was submitted that although the existence of judiciary could be a basic structure of constitution and can't be abrogated however this power may be curtailed in few matters.
It again absolutely was submitted that Article 31B and also the amendments put together by such laws superimposed to the Ninth Schedule shape such a tool, which might ‘cure the defect’ of legislation.
The court in its judgement by a unanimous call upheld that any law enclosed within the ninth Schedule that abridges the rights presented in part III of the Constitution would be nullified by the exercise of judicial review.
The ‘effect and impact’ check should be considered while deciding whether or not such law destroy the fundamental structure doctrine.
All amendments to the Constitution created on or made twenty fourth April 1973 by which the Ninth Schedule is amended should be tested on the criterion of the fundamental characteristics of the Constitution as mirrored in Article twenty one, Article fourteen, Article nineteen and also the principles underlying them.
Any law upheld to be infringing of any rights in part III that is superimposed within the Ninth Schedule when twenty fourth April 1973, will be challenged on in the wake of that it destroys the fundamental structure as indicated in Article twenty one, Article fourteen and Article nineteen and also the principles set at intervals.
Judicial review could be a basic structure of the Constitution, and no law will be immunised from judicial scrutiny by method of addition within the ninth Schedule.
The judgement propounded by the court upholds the basic structure doctrine. It acts as a check on the amending power of the Parliament if found infringing on the rights of the voters. The court in its judgement set forth a transparent distinction and upheld that laws within the ninth Schedule would be within judicial review not only when it poses a threat to the structure of the Constitution however additionally if it is found to be infringing of the Fundamental Rights. Thus, it demarcated a transparent boundary between the extent of amending powers of the parliament and the power of judicial review as well of the courts.
This article is written by Vaibhavi Vora of Pravin Gandhi College Of Law, Mumbai.