13 Sep 2010

Basic Structure under Indian Constitution: The law revisited

The Ninth Schedule to the Constitution provides a list of laws which are not amenable to judicial review and in terms of other provisions of the Constitution, these laws cannot be invalidated on grounds of violation of a fundamental right. Typically these laws constitute those which relate to land acquisition and those relating to right of a citizen to hold property. A nine-judge bench of the Supreme Court in I.R. Coelho v. State of Tamil Nadu [(2007) 2 SCC 1] declared that despite the said stipulation, in view of the doctrine of basic structure (which includes 'judicial review') it was open to the Supreme Court to examine the validity of such laws

In a recent decision [Glanrock Estate (P) Ltd. v. State of Tamil Nadu] the Supreme Court has explained the meaning and application of this doctrine in the light of the doctrine of basic structure as the law of the land. The Bench observed inter alia as under;
8. Coming to the applicability of the judgment of the 9-Judge Bench decision of this Court in I.R. Coelho (supra), time has come for us to explain certain concepts in that judgment like egalitarian equality, over-arching principles and reading of Article 21 with Article 14. In this connection, one needs to keep in mind what is called as the “degree test”. Ultimately, in applying the above three concepts enumerated herein, one has to go by the degree of abrogation as well as the degree of elevation of an ordinary principle of equality to the level of over-arching principle (s). One must keep in mind that in this case the challenge is not to the ordinary law of the land. The challenge is to the constitutional amendment. In a rigid Constitution [See Article 368] power to amend the Constitution is a derivative power, which is an aspect of the constituent power. The challenge is to the exercise of derivative power by the Parliament in the matter of inclusion of the Janmam Act (Act 24 of 1969) as Item No. 80 in the Ninth Schedule of the Constitution vide the Constitution (Thirty-fourth Amendment) Act, 1974. Since the power to amend the Constitution is a derivative power, the exercise of such power to amend the Constitution is subject to two limitations, namely, the doctrine of basic structure and lack of legislative competence. The doctrine of basic structure is brought in as a window to keep the power of judicial review intact as abrogation of such a power would result in violation of basic structure. When we speak of discrimination or arbitrary classification, the same constitutes violation of Article 14 of the Constitution. In this connection, the distinction between constitutional law and ordinary law in a rigid Constitution like ours is to be kept in mind. The said distinction proceeds on the assumption that ordinary law can be challenged on the touchstone of the Constitution. Therefore, when an ordinary law seeks to make a classification without any rational basis and without any nexus with the object sought to be achieved, such ordinary law could be challenged on the touchstone of Article 14 of the Constitution. However, when it comes to the validity of a constitutional amendment, one has to examine the validity of such amendment by asking the question as to whether such an amendment violates any over-arching principle in the Constitution. What is over-arching principle? Concepts like secularism, democracy, separation of powers, power of judicial review fall outside the scope of amendatory powers of the Parliament under Article 368. If any of these were to be deleted it would require changes to be made not only in Part III of the Constitution but also in Articles 245 and the three Lists of the Constitution resulting in the change of the very structure or framework of the Constitution. When  an impugned Act creates a classification without any rational basis and having no nexus with the objects sought to be achieved, the principle of equality before law is violated undoubtedly. Such an Act can be declared to be violative of Article 14. Such a violation does not require re-writing of the Constitution. This would be a case of violation of ordinary principle of equality before law. Similarly, “egalitarian equality” is a much wider concept. It is an over-arching principle. Take the case of acquisition of forests. Forests in India are an important part of environment. They constitute national asset. In various judgments of this Court delivered by the Forest Bench of this Court in the case of T.N. Godavarman v. Union of India [Writ Petition No. 202 of 1995], it has been held that “inter-generational equity” is part of Article 21 of the Constitution. What is inter-generational equity? The present generation is answerable to the next generation by giving to the next generation a good environment. We are answerable to the next generation and if deforestation takes place rampantly then inter-generational equity would stand violated. The doctrine of sustainable development also forms part of Article 21 of the Constitution. The “precautionary principle” and the “polluter pays principle” flow from the core value in Article 21. The important point to be noted is that in this case we are concerned with vesting of forests in the State. When we talk about inter-generational equity and sustainable development, we are elevating an ordinary principle of equality to the level of overarching principle. Equality doctrine has various facets. It is in this sense that in I.R. Coelho’s case this Court has read Article 21 with Article 14. The above example indicates that when it comes to preservation of forests as well as environment vis-à-vis development, one has to look at the constitutional amendment not from the point of view of formal equality or equality enshrined in Article 14 but on a much wider platform of an egalitarian equality which includes the concept of “inclusive growth”. It is in that sense that this Court has used the expression Article 21 read with Article 14 in I.R. Coelho’s case. Therefore, it is only that breach of the principle of equality which is of the character of destroying the basic framework of the Constitution which will not be protected by Article 31B. If every breach of Article 14, however, egregious, is held to be unprotected by Article 31B, there would be no purpose in protection by Article 31B. The question can be looked at from yet another angle. Can Parliament increase its amending power by amendment of Article 368 so as 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 limitations/ restrictions placed on the amending power or free the amending power from all limitations. This is the effect of the decision in Kesavananda Bharati (supra). The point to be noted, therefore, is that when constitutional law is challenged, one has to apply the “effect test” to find out the degree of abrogation. This is the “degree test” which has been referred to earlier. If one finds that the constitutional amendment seeks to abrogate core values/ over-arching principles like secularism, egalitarian equality, etc. and which would warrant re-writing of the Constitution then such constitutional law would certainly violate the basic structure. In other words, such over-arching principles would fall outside the amendatory power under Article 368 in the sense that the said power cannot be exercised even by the Parliament to abrogate such over-arching principles. It is important to bear in mind that according to Justice Mathew’s observations in Smt. Indira Nehru Gandhi (supra), equality is a feature of rule of law and not vice-versa, as submitted by Mr. Viswanathan, learned counsel for the petitioner(s). Very often the expression “Rule of Law” is used to convey the idea of a Government that is limited by law. The expression “Rule of Law” describes a society in which Government must act in accordance with law. A society governed by law is the foundation of personal liberty. It is also the foundation of economic development since investment will not take place in a country where rights are not respected. It is in that sense that the expression “Rule of Law” constitutes an overarching principle embodied in Article 21, one aspect of which is equality. It is in that context that this Court has used the phrase “Article 21 read with Article 14” in the judgment in the case of I.R. Coelho (supra) to which one of us Kapadia, J. was a party.

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